Lucero-Carrera v. Holder, Jr. , 349 F. App'x 260 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
October 14, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
ABELINA LUCERO-CARRERA,
a/k/a Abelina Lucero, a/k/a
Abdina Lucero, a/k/a Abby Lucero,
Petitioner,
v. No. 08-9582
(Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before BRISCOE, HOLLOWAY, and EBEL, Circuit Judge.
Abelina Lucero-Carrera seeks reversal of a Board of Immigration Appeals’
(BIA) decision finding her ineligible for cancellation of removal as an aggravated
felon. She claims her state forgery conviction is not an aggravated felony under
8 U.S.C. § 1101(a)(43)(R), and that the immigration judge (IJ) violated her due
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
process rights by misinforming her on the relevant burden of proof. We deny the
petition for review.
I
Ms. Lucero-Carrera, a native and citizen of Mexico, was admitted into the
United States in 1975 as a lawful permanent resident. In 2003, she was convicted
in Colorado state court for possession of methamphetamine, and in 2004, she
pleaded guilty to the Colorado crimes of forgery and possession of a forged
instrument, Colo. Rev. Stat. §§ 18-5-102(1)(c) and 18-5-105. Based on her drug
conviction, the government initiated removal proceedings under 8 U.S.C.
§ 1227(a)(2)(B)(i). Ms. Lucero-Carrera conceded removability but expressed her
intent to seek cancellation of removal pursuant to 8 U.S.C. § 1229b(a). The IJ
initially told her she appeared to be eligible for relief, but after learning of her
forgery conviction for which she had been sentenced to five years in prison, the IJ
advised her that she was not eligible for cancellation of removal because the
forgery conviction was an aggravated felony under § 1101(a)(43)(R). Hence, the
IJ pretermitted her application for cancellation of removal and ordered her
removed to Mexico.
On appeal to the BIA, Ms. Lucero-Carrera argued that she was eligible for
cancellation of removal. Among other things, she asserted that her forgery
conviction was not an aggravated felony under § 1101(a)(43)(R) and that the
government failed to prove otherwise. The BIA rejected both arguments, first
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ruling that it was Ms. Lucero-Carrera’s burden to show that she was eligible for
cancellation of removal. And, after finding that her forgery conviction qualified
categorically as an aggravated felony under § 1101(a)(43)(R), the BIA ruled that
she failed to meet that burden. Accordingly, the BIA upheld the IJ’s decision and
dismissed the appeal. In her petition for review, Ms. Lucero-Carrera continues to
challenge the IJ’s determination that her conviction was an aggravated felony.
She also claims that she was denied due process because the IJ misinformed her
on the relevant burden of proof to establish eligibility for cancellation of removal.
II
We first consider our jurisdiction. See Sosa-Valenzuela v. Gonzales,
483 F.3d 1140, 1143 (10th Cir. 2007). Although we lack jurisdiction over
discretionary denials of cancellation of removal, 8 U.S.C. § 1252(a)(2)(B)(i), in
this case, the denial of relief turned on the legal determination that the Colorado
crime of forgery constitutes an aggravated felony under § 1101(a)(43)(R). This
non-discretionary ruling renders the jurisdictional bar of § 1252(a)(2)(B)(i)
inapplicable. Cf. Sabido Valdivia v. Gonzales, 423 F.3d 1144, 1148-49 (10th Cir.
2005). Accordingly, we proceed to the merits of the petition.
“We review the BIA’s findings of fact under the substantial evidence
standard, and its legal determinations de novo.” Hayrapetyan v. Mukasey,
534 F.3d 1330, 1335 (10th Cir. 2008). “Agency findings of fact are conclusive
unless . . . any reasonable adjudicator would be compelled to conclude to the
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contrary.” Sarr v. Gonzales, 474 F.3d 783, 788-90 (10th Cir. 2007) (quotation
marks omitted). Where, as here, the BIA issues a decision by a single board
member, the BIA’s decision constitutes the final order of removal, although “we
may consult the IJ’s opinion to the extent that the BIA relied upon or incorporated
it.” Id. at 790.
Ms. Lucero-Carrera first contends that her forgery conviction is not an
aggravated felony. She asserts that Colorado’s forgery statute criminalizes
conduct beyond that contemplated by Congress in § 1101(a)(43)(R), and therefore
we must ascertain whether her specific offense falls within the ambit of the
federal definition of forgery. She asserts that her conviction for falsely uttering
an instrument with intent to defraud, though forgery under Colorado law, is not
forgery under federal law for purposes of § 1101(a)(43)(R).
Section 1101(a)(43)(R) defines an aggravated felony to include “an offense
relating to . . . forgery . . . for which the term of imprisonment is at least one
year.” The phrase “relating to” has been interpreted expansively to “cover a
range of activities beyond those of . . . forgery itself.” Richards v. Ashcroft,
400 F.3d 125, 129 (2d Cir. 2005) (quotations marks omitted). Indeed, “[t]he
words ‘relating to’ make it apparent that many crimes that are not specifically
listed in 8 U.S.C. § 1101(a)(43)(R) will constitute an aggravated felony as long as
they are related to the crimes listed.” United States v. Chavarria-Brito, 526 F.3d
1184, 1186 (8th Cir. 2008). Thus, Ms. Lucero-Carrera’s forgery conviction will
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qualify as an aggravated felony under § 1101(a)(43)(R) if it is an offense relating
to forgery as Congress intended the term.
Congress did not define “forgery” as used in § 1101(a)(43)(R), but under
these circumstances, we may refer to the generic, common-law definition of
forgery. See Drakes v. Zimski, 240 F.3d 246, 249 (3d Cir. 2001) (reviewing
federal statutes involving forgery and referring to common-law definition). We
have said that forgery, at common-law, meant “the false making, with the intent
to defraud, of a document which is not what it purports to be, as distinct from a
document which is genuine but nevertheless contains a term or representation
known to be false.” United States v. Hunt, 456 F.3d 1255, 1260 (10th Cir. 2006);
accord 36 Am. Jur. 2d Forgery § 1 (2009) (defining forgery as “the fraudulent
making or alteration of a writing to the prejudice of another’s rights”). The
Model Penal Code elaborates on this definition, stating that a person commits
forgery by falsely uttering an instrument with intent to defraud:
A person is guilty of forgery if, with purpose to defraud or injure
anyone, or with knowledge that he is facilitating a fraud or injury to
be perpetrated by anyone, the actor:
(a) alters any writing of another without his authority; or
(b) makes, completes, executes, authenticates, issues or
transfers any writing so that it purports to be the act of another
who did not authorize that act . . . or
(c) utters any writing which he knows to be forged in a manner
specified in paragraphs (a) or (b).
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Model Penal Code § 224.1(1) (2001); see also 164 A.L.R. 621 (1946)
(recognizing that knowledge of falsity may be presumed from the uttering of a
forged instrument).
Similarly, Colorado law provides that a person is guilty of forgery if, with
intent to defraud, she falsely utters an instrument capable of affecting a legal
right:
A person commits forgery, if, with intent to defraud, such person
falsely makes, completes, alters or utters a written instrument which
is or purports to be, or which is calculated to become or to represent
if completed . . . [a] . . . check[] or other instrument which does or
may evidence, create, transfer, terminate, or otherwise affect a legal
right, interest, obligation, or status.
Colo. Rev. Stat. § 18-5-102(1)(c). The phrase “falsely makes” means “to make or
draw a written instrument . . . which purports to be an authentic creation of its
ostensible maker, but which is not, either because the ostensible maker is
fictitious or because, if real, he did not authorize the making or the drawing
thereof.” Id. § 18-5-101(4). The word “‘[u]tter’ means to transfer, pass, or
deliver . . . to another person any written instrument.” Id. § 18-5-101(8).
This comparison between the generic definition of forgery and the
elements of Ms. Lucero-Carrera’s crime demonstrates that her forgery
conviction is an offense relating to forgery. Thus, we agree that her conviction
qualifies categorically as an aggravated felony under § 1101(a)(43)(R) and that
she is, therefore, ineligible for cancellation of removal.
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Ms. Lucero-Carrera urges us to follow Vizcarra-Ayala v. Mukasey,
514 F.3d 870, 875-76 (9th Cir. 2008), where the Ninth Circuit found that
California’s forgery law criminalized conduct beyond the scope of common-law
forgery because the statute did not distinguish between “real or fictitious”
documents. Unlike California’s forgery statute, however, Colorado law
contemplates conduct only involving false documents. People v. Rubanowitz,
688 P.2d 231, 236-37 (Colo. 1984); People v. White, 804 P.2d 247, 248 (Colo. Ct.
App. 1990). Indeed, Ms. Lucero-Carrera cites no case, and we have found none,
in which a defendant was convicted under Colorado’s forgery statute for uttering
a genuine document. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)
(requiring “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”). Hence, Vizcarra-Ayala does not impact our conclusion that Ms. Lucero-
Carrera’s conviction qualifies categorically as an aggravated felony. 1
Next, Ms. Lucero-Carrera claims she was denied due process when the IJ
misinformed her of her burden of proof. She contends the IJ misled her to believe
she could not demonstrate her eligibility for cancellation of removal by
challenging the government’s classification of her as an aggravated felon. She
1
Even if we consider Ms. Lucero-Carrera’s argument that she did not alter
the instrument, the result would be the same because she pleaded guilty to count
three of the information, which charged her with “falsely mak[ing], complet[ing],
alter[ing], and utter[ing] a written instrument.” Admin. R. at 149, 152.
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further contends the BIA compounded the error by ruling that she failed to meet
her burden of proof. To the extent Ms. Lucero-Carrera challenges the IJ’s
decision, this claim was never presented to the BIA. See 8 U.S.C. § 1252(d)(1)
(requiring aliens to exhaust administrative remedies). 2 Although constitutional
challenges are excepted from the exhaustion requirement, this exception does not
extend to “administratively correctable procedural defect[s]” that a petitioner later
frames as a constitutional claim. Vicente-Elias v. Mukasey, 532 F.3d 1086, 1094-
95 (10th Cir. 2008). Ms. Lucero-Carrera’s failure to exhaust her claim against the
IJ precludes us from reviewing it.
To the extent Ms. Lucero-Carrera challenges the BIA’s ascription of the
burden of proof, her argument fails. The BIA correctly observed that the burden
was on her to show that she was not barred from seeking cancellation of removal.
See 8 C.F.R. § 1240.8(d). Her contention might have merit if the government had
relied on her forgery conviction to establish removability, because that would
have required the government to produce clear and convincing evidence
establishing her conviction as an aggravated felony. See Cruz-Garza v. Ashcroft,
396 F.3d 1125, 1130 (10th Cir. 2005) (requiring the government to prove
removable offense qualified as an aggravated felony under § 1101(a)(43)). But
2
Before the BIA, Ms. Lucero-Carrera argued that her conviction was not an
aggravated felony, the government failed to meet its burden of proof, and due
process requires uniform immigration laws. She never claimed the IJ violated her
due process rights by misinforming her on her burden of proof.
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instead, the government sought to remove Ms. Lucero-Carrera for her
methamphetamine conviction, which she conceded established her removability.
Under these circumstances, it was incumbent upon Ms. Lucero-Carrera to show
she was eligible for the discretionary grant of cancellation of removal, and the
BIA did not err in requiring her to do so. See Schroeck v. Gonzales, 429 F.3d
947, 952 (10th Cir. 2005).
Accordingly, the petition for review is DENIED. Ms. Lucero-Carrera’s
motion to proceed in forma pauperis is GRANTED.
Entered for the Court
David M. Ebel
Circuit Judge
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