Garcia-Morales v. Sessions ( 2019 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 25, 2019
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
MIGUEL ANGEL GARCIA-
MORALES,
Petitioner,
v. No. 17-9559
WILLIAM P. BARR,* United States
Attorney General,
Respondent.
ORDER AND JUDGMENT **
Before TYMKOVICH, Chief Judge, HOLMES and PHILLIPS, Circuit Judges.
Miguel Garcia-Morales petitions for review from an order of the Bureau of
Immigration Appeals (“BIA”) affirming and adopting a decision by an immigration
judge (“IJ”) to pretermit his application for cancellation of removal under section
240A(b) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1229b(b).
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), the current
Attorney General, William P. Barr, is automatically substituted for Jefferson B. Sessions,
III, who was the Attorney General when Mr. Garcia-Morales filed his petition for review.
**
This order and judgment is not binding precedent, except under the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 Federal Rule of Appellate Procedure
32.1 and 10th Circuit Rule 32.1.
Mr. Garcia-Morales argues that, contrary to the BIA’s conclusion, his accessory
conviction under Idaho Code (“I.C.”) § 18-205 is categorically not a crime
involving moral turpitude (“CIMT”). We agree with him. Exercising jurisdiction
under 8 U.S.C. § 1252(a), we grant the petition and remand the case to the BIA
for further proceedings consistent with this order and judgment.
I
Mr. Garcia-Morales is a citizen and native of Mexico who entered the
United States without inspection. After he pleaded guilty in 2015 to a count of
Injury to Children under I.C. § 18-1501(1), the Department of Homeland Security
(“DHS”) served him with a Notice to Appear and charged him with two grounds
of removability. The first ground was being present without admission or parole,
pursuant to section 212(a)(6)(A)(i) of the INA, and the second ground was having
been convicted of a CIMT, pursuant to section 212(a)(2)(A)(i)(I) of the INA.
At a March 2016 hearing, the IJ sustained the first removability
ground—which Mr. Garcia-Morales had conceded—but not the second, finding
that I.C. § 18-1501(1) “does not require sufficiently culpable mens rea” to qualify
as a CIMT. A.R. at 74–75 (Hr’g Tr., dated Mar. 7, 2016). Mr. Garcia-Morales
subsequently filed an application for cancellation of removal under section
240A(b) of the INA, 8 U.S.C. § 1229b(b).
2
In September 2016, an Idaho court granted Mr. Garcia-Morales’s request for
post-conviction relief based on ineffective assistance of counsel, allowing him to
withdraw his guilty plea to a violation of I.C. § 18-1501(1) and instead plead
guilty to an amended charge of Accessory to Felony in violation of I.C. § 18-205.
That statute states the following:
All persons are accessories who, having knowledge that a felony
has been committed:
(1) Willfully withhold or conceal it from a peace officer, judge,
magistrate, grand jury or trial jury; or
(2) Harbor and protect a person who committed such felony or
who has been charged with or convicted thereof.
I.C. § 18-205.
Mr. Garcia-Morales’s amended criminal information did not identify the
particular underlying felony as to which he was an accessory, stating only that he
“did willfully withhold or conceal knowledge that a felony has been committed by
another person and withheld that information from law enforcement.” A.R. at 166
(Am. Information, filed Oct. 4, 2016). The other records related to this conviction
similarly did not identify the underlying felony.
In February 2017, the IJ pretermitted Mr. Garcia-Morales’s application for
cancellation of removal, ruling that he had not met his burden, in accordance with
8 C.F.R. § 1240.8(d), to establish by a preponderance of the evidence that a
3
ground for mandatory denial—here, a CIMT conviction—did not apply. Relying
on Matter of Rivens, 25 I. & N. Dec. 623 (BIA 2011), the IJ stated that
determining whether an accessory conviction is a CIMT requires examining the
underlying felony: where the principal’s act was a CIMT, so was the related
accessory crime, but “where the principal’s act was not a [CIMT], it follows that a
person who harbored or concealed the principal would also not have committed a
[CIMT].” A.R. at 54–55 (IJ Order, dated Feb. 7, 2017) (emphasis added).
Applying this reasoning to Mr. Garcia-Morales’s circumstances, the IJ
concluded that it was not possible to determine whether his § 18-205 conviction
was a CIMT because the underlying felony was unclear: Mr. Garcia-Morales’s
conviction-related documents did not mention the underlying felony, he had not
submitted any other evidence of the underlying felony, and his Injury to Children
conviction under § 18-1501(1) could not be deemed to be the underlying felony
because that conviction had been vacated. Given this uncertainty, the IJ concluded
that Mr. Garcia-Morales did not meet his burden to show that a ground for
mandatory denial of cancellation of removal did not apply.
More specifically, the IJ rejected Mr. Garcia-Morales’s argument that
§ 18-205 is overbroad—effectively encompassing more than underlying felonies
that are CIMTs—and that, consequently, the statute is categorically not a CIMT.
See A.R. at 108 (Resp. to Dep’t’s Mot. to Pretermit, filed Dec. 13, 2016) (arguing
4
that his conviction is not categorically a CIMT because § 18-205’s general term,
“a felony”—an element of the offense—is “broad and encompasses both conduct
that involves moral turpitude and conduct that does not”). In response, the IJ
indicated that the particular underlying felony is inherently an element of an
accessory offense, stating that “[b]y its very nature, an accessory conviction
requires analysis of the underlying crime.” Id. at 56. Thus, the IJ concluded,
“[the] underlying crime is subject to the categorical analysis.” Id.
Mr. Garcia-Morales appealed from the IJ’s decision to the BIA. Expressly
relying on the Supreme Court’s decision in Mathis v. United States, --- U.S. ----,
136 S. Ct. 2243 (2016), he stressed that the IJ’s belief that “whether § 18-205(1)
is a crime of moral turpitude turns on the ‘underlying’ crime” was erroneous.
A.R. at 26 (Resp’t’s Br. on Appeal, filed July 20, 2017). That is because, he
reasoned, “jury unanimity [is not required] as to which [underlying] felony was
committed” under Idaho law. Id. Under this Idaho authority, he contended, all
that § 18-205 requires is a defendant’s knowledge that a felony (i.e., some felony)
has been committed, which could very well include a non-CIMT felony. See id.
Accordingly, Mr. Garcia-Morales urged the BIA to conclude that § 18-205 is
categorically “overbroad” and that his conviction is “therefore not” a CIMT. Id.
The BIA, however, “adopt[ed] and affirm[ed] the decision of the [IJ],”
concluding that Mr. Garcia-Morales did not meet his burden of showing that his
5
§ 18-205 conviction is not a CIMT. Id. at 3 (BIA Order, dated Nov. 20, 2017).
Without directly addressing Mr. Garcia-Morales’s contention that the particular
underlying felony is not an element of the § 18-205 offense, the Board stated that
Matter of Rivens compels an IJ to “consider the turpitudeness of the underlying
offense” in order “to determine if the respondent’s accessory crime is a [CIMT].”
Id. at 4.
Mr. Garcia-Morales now petitions for review of the BIA’s decision. He
maintains that his § 18-205 conviction is not a CIMT because the statute both
sweeps more broadly than the definition of a CIMT and is indivisible.1
II
“Although we usually lack jurisdiction to review BIA orders concerning
cancellation under § 1229b, see 8 U.S.C. § 1252(a)(2)(B)(i), we have jurisdiction
to review questions of law decided in those orders, id. § 1252(a)(2)(D) . . . .”
Flores-Molina v. Sessions, 850 F.3d 1150, 1157 (10th Cir. 2017) (citation
omitted). And, though “[w]e review the ruling of the BIA as the agency’s final
decision,” Jimenez v. Sessions, 893 F.3d 704, 709 (10th Cir. 2018), “[w]e may
1
Mr. Garcia-Morales makes additional arguments for relief. Among others,
he contends that, even if § 18-205 is divisible, his conviction would still not qualify
categorically as a CIMT because I.C. § 18-205 lacks the level of scienter needed for a
CIMT. Because we agree with Mr. Garcia-Morales that I.C. § 18-205 is indivisible and
not categorically a CIMT—and grant his petition for review on this basis—we need not
reach Mr. Garcia-Morales’s additional arguments.
6
consult the IJ’s decision to give substance to the BIA’s reasoning,” Razkane v.
Holder, 562 F.3d 1283, 1287 (10th Cir. 2009). “This is especially appropriate
where the BIA incorporates by reference the IJ’s rationale or repeats a condensed
version of its reasons while also relying on the IJ’s more complete discussion.”
Id. (quoting Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006)).
We review de novo the BIA’s legal determinations in a denial of a motion
for cancellation of removal, “although in appropriate circumstances we may defer
to the BIA’s interpretation of the immigration laws it implements.” Lucio-Rayos
v. Sessions, 875 F.3d 573, 576 (10th Cir. 2017), cert. denied, --- U.S. ----, 139 S.
Ct. 865 (2019). But, to be clear, we “owe no deference to the BIA’s interpretation
of the substance of the state-law offense at issue.” De Leon v. Lynch, 808 F.3d
1224, 1228 (10th Cir. 2015) (alterations omitted) (quoting Efagene v. Holder, 642
F.3d 918, 921 (10th Cir. 2011)).
A
1
As part of his burden to establish eligibility for cancellation of removal, see
8 U.S.C. § 1229a(c)(4)(A), Mr. Garcia-Morales must prove by a preponderance of
the evidence that grounds for mandatory denial of relief do not apply, see 8 C.F.R.
§ 1240.8(d). One such ground is a prior conviction for a CIMT. See 8 U.S.C.
§§ 1229b(b)(1)(C), 1182(a)(2)(A)(i)(I). If his record is inconclusive as to whether
7
a prior conviction was for a CIMT, Mr. Garcia-Morales fails to meet his burden.
See Lucio-Rayos, 875 F.3d at 583–84.
A prior conviction qualifies as a CIMT if it involves “conduct which is
inherently base, vile, or depraved, contrary to the accepted rules of morality and
the duties owed between man and man, either one’s fellow man or society in
general.” Veloz-Luvevano v. Lynch, 799 F.3d 1308, 1312–13 (10th Cir. 2015)
(quoting Wittgenstein v. INS, 124 F.3d 1244, 1246 (10th Cir. 1997)). To make the
CIMT determination, we apply the categorical approach and, where appropriate,
the modified categorical approach. See Flores-Molina, 850 F.3d at 1158 & n.3;
see also Matter of Mendez, 27 I. & N. Dec. 219, 221 (BIA 2018) (“We have held
that the categorical and modified categorical approaches provide the proper
framework for determining whether a conviction is for a [CIMT].”).
Under the categorical approach, “we look only to the elements that must be
proven to convict a person under [the statute] in the abstract, ‘and not to the
particular facts underlying’” the conviction. United States v. Mann, 899 F.3d 898,
901–02 (10th Cir. 2018) (quoting United States v. Pam, 867 F.3d 1191, 1203 (10th
Cir. 2017), cert. denied, --- U.S. ----, 139 S. Ct. 2637 (2019)). Moreover, “we
must presume that the conviction ‘rested upon [nothing] more than the least of
th[e] acts’ criminalized” by the elements of the crime, “and then determine
whether even those acts are encompassed” within the definition of a CIMT.
8
Moncrieffe v. Holder, 569 U.S. 184, 190–91 (2013) (alterations in original)
(quoting Johnson v. United States, 559 U.S. 133, 137 (2010)). If the elements of
the crime that the defendant was convicted of categorically “sweep[] more
broadly,” Descamps v. United States, 570 U.S. 254, 261 (2013), than the definition
of a CIMT—that is, if the elements of the offense criminalize conduct that would
not qualify as a CIMT—then, the offense is not a CIMT, see Jimenez, 893 F.3d at
709; see also Afamasaga v. Sessions, 884 F.3d 1286, 1289 (10th Cir. 2018) (noting
that petitioner’s “offense was a CIMT only if all conduct prohibited by [the
elements of his conviction] involves moral turpitude” (emphasis added)).
Some statutes do not have a single, indivisible set of elements; instead, they
have a divisible structure containing “elements in the alternative, and thereby
define multiple crimes.” Mathis, 136 S. Ct. at 2249. When applying the
categorical approach to a divisible statute, courts typically invoke the modified
categorical approach—which involves looking at “a limited class of documents”
from the prior conviction—“to determine what crime, with what [set of] elements,
a defendant was convicted of.” Id. The court then applies “the categorical
approach to determine whether those alternative elements necessarily qualify as a
[CIMT].” Jimenez, 893 F.3d at 709; see also United States v. Titties, 852 F.3d
1257, 1267 (10th Cir. 2017) (“[T]he modified [categorical] approach merely helps
9
implement the categorical approach when a defendant was convicted of violating a
divisible statute.” (quoting Descamps, 570 U.S. at 263)).
But resort to the modified categorical “approach is permissible only if the
statute of conviction is divisible.” United States v. Hamilton, 889 F.3d 688, 692
(10th Cir. 2018) (emphasis added); Titties, 852 F.3d at 1267 (“‘The modified
approach . . . has no role to play’ when the statute of conviction is
indivisible—i.e., when it lacks alternative elements.” (omission in original)
(quoting Descamps, 570 U.S. at 264)); see also United States v. Degeare, 884 F.3d
1241, 1246 (10th Cir. 2018) (“This pure categorical approach applies to statutes
that aren’t divisible, i.e., those that contain ‘a single, indivisible set of elements.’
But if the statute in question is divisible, i.e., if it ‘contains more than one crime,’
then we instead apply the modified categorical approach.” (citation omitted)
(quoting Descamps, 570 U.S. at 258; then Titties, 852 F.3d at 1265)).
2
Under BIA precedent, an accessory conviction is a CIMT if, and only if, the
underlying felony is a CIMT. See Matter of Rivens, 25 I. & N. Dec. at 628
(justifying this approach on the grounds that “helping a base criminal escape
justice is more reflective of a breach of duty owed to society than when the
principal has committed an offense that is not itself base or vile”). Mr. Garcia-
Morales’s statute of conviction, however, does not identify a particular underlying
10
felony. See I.C. § 18-205 (“All persons are accessories who, having knowledge
that a felony has been committed: (1) [w]illfully withhold or conceal it from a
peace officer . . . .” (emphasis added)).
However, the IJ effectively assumed that I.C. § 18-205’s general term, “a
felony,” was divisible as to the underlying felony, asserting that “the underlying
[felony]” of Mr. Garcia-Morales’s conviction is “subject to the categorical
analysis,” given “[the] very nature” of accessory convictions. A.R. at 55–56.
Accordingly, the IJ performed a modified-categorical analysis, examining “the
accessory conviction documents,” in an effort “to determine what the underlying
felony was,” and determined that those documents were “inconclusive” on that
subject. Id. at 55. Thus, it found that Mr. Garcia-Morales had failed to carry his
burden of proof to establish that his accessory offense was not a CMIT.
The BIA followed the IJ’s lead, expressly “adopt[ing] and affirm[ing]” the
IJ’ decision. Id. at 3. It reasoned that § 18-205 “requires that the person
convicted of the [accessory] crime had knowledge of the underlying felony,” and
“it is the turpitudeness of this underlying felony that determines whether or not an
individual convicted of an accessory crime is removable for having committed a
crime involving moral turpitude.” Id. at 4. It concluded that Mr. Garcia-Morales
had not carried his burden of proof to show that he had not been convicted of a
CIMT; in particular, he had “presented no evidence concerning the nature of the
11
crime underlying his accessory conviction.” Id. at 5. Therefore, the BIA denied
Mr. Garcia-Morales relief from removal.
3
Contrary to the BIA’s reasoning, however, the divisibility inquiry is “an
essential step” that ordinarily must not be assumed away because it determines
whether recourse to the modified categorical approach is permissible at all.
Titties, 852 F.3d at 1267; see, e.g., Hamilton, 889 F.3d at 692 (holding that the
modified categorical “approach is permissible only if the statute of conviction is
divisible” (emphasis added)); Degeare, 884 F.3d at 1246 (noting that we “apply
the modified categorical approach” when the statute is divisible). Specifically, as
relevant here, I.C. § 18-205 is divisible if the general statutory term, “a felony,” is
divisible as to the underlying felony. If so, the statute consists of multiple,
distinct accessory crimes that are predicated on different underlying felonies. In
other words, the particular underlying felonies would be alternative, “statutory
options [that] constitute elements [of distinct accessory offenses] rather than
means” to satisfy the statute’s element that a felony has been committed.
Hamilton, 889 F.3d at 692 (emphasis added); see Mathis, 136 S. Ct. at 2249
(comparing and contrasting “[a] single statute [that] may list elements in the
alternative, and thereby define multiple crimes,” with “one that enumerates various
factual means of committing a single element”).
12
If § 18-205 is divisible as to the underlying felony, it would be appropriate
to use the modified categorical approach to attempt to determine the identity of the
underlying felony that formed the basis of Mr. Garcia-Morales’s conviction. See,
e.g., Degeare, 884 F.3d at 1246. And, if the modified categorical approach
revealed the identity of the underlying felony, we would then “apply the
categorical approach . . . by comparing the elements” of Mr. Garcia-Morales’s
§ 18-205 offense—including the elements of the particular underlying felony—to
the elements of a CIMT, in order to discern whether his § 18-205 offense is a
CIMT. Titties, 852 F.3d at 1265; see Mathis, 136 S. Ct. at 2254 n.4 (noting that
“the categorical approach’s basic method” involves “comparing those elements [of
the offense at issue] with the generic offenses’s” elements). Notably, if § 18-205
is divisible as to the underlying felony—such that the particular felony constitutes
an element of the offense—the prosecution would be obliged to prove, or the
defendant would be required to admit when entering a plea, that the particular
felony had been committed, not just that some felony had been committed. See
Mathis, 136 S. Ct. at 2248–49 (noting that “‘[e]lements’ are the ‘constituent parts’
of a crime’s legal definition—the things the ‘prosecution must prove to sustain a
conviction[]’ . . . . and at a plea hearing, they are what the defendant necessarily
admits when he pleads guilty,” whereas “means” are “various factual ways of
committing some component of the offense” and therefore “a jury need not find
13
(or a defendant admit) any particular” means (quoting Elements of Crime, BLACK ’S
LAW DICTIONARY (10th ed. 2014)); accord Titties, 852 F.3d at 1267.
On the other hand, if I.C. § 18-205 is indivisible as to the underlying felony,
that would mean that the statute “lacks alternative elements”—more specifically,
that the general statutory term “a felony” would not effectively embody
alternative, particular felonies as elements that form separate accessory offenses.
Titties, 852 F.3d at 1267. As applied here, the indivisibility of § 18-205 as to the
underlying felony would mean that the elements of Mr. Garcia-Morales’s
conviction would categorically “sweep[] more broadly,” Descamps, 570 U.S. at
261, than the definition of a CIMT because, as the BIA itself acknowledges, some
underlying felonies would not constitute a CIMT, and, consequently, the accessory
crimes related to those offenses also would not qualify as CIMTs, see Jimenez,
893 F.3d at 716 (holding that a conviction under the Colorado first-degree criminal
trespass statute is not categorically a CIMT because the statute is indivisible as to
the particular “ulterior offense” (i.e., underlying crime) and the BIA had
acknowledged that a conviction under the statute could only qualify as a CIMT if
the ulterior offense was a CIMT).
The resolution of this case thus hinges on whether I.C. § 18-205 is divisible
as to the underlying felony. And the answer to that question turns on whether the
particular underlying felony is an element of the offense or merely a factual means
14
of satisfying the statutory requirement that “a felony” has been committed. See,
e.g., Hamilton, 889 F.3d at 692; Degeare, 884 F.3d at 1247; Titties, 852 F.3d at
1267. We apply the Mathis divisibility framework to inquire into this matter.2
See, e.g., Degeare, 884 F.3d at 1247.
B
1
Under Mathis, we employ three “tools” in conducting the elements-means
inquiry—an inquiry upon which the critical divisibility determination turns: (1)
state-court opinions (as well as court-approved pattern jury instructions), (2) the
2
Though neither the IJ nor the BIA performed a Mathis divisibility analysis,
we perform that analysis now without first remanding to the BIA because Mathis was
controlling law at the time of the IJ and BIA proceedings, and Mr. Garcia-Morales
presented the IJ—and, perhaps more importantly, the final agency adjudicator, the
BIA—with a fair opportunity to apply Mathis’s rubric to his case. Indeed, in his briefing
to the BIA, Mr. Garcia-Morales’s reliance on Mathis was pellucid. See A.R. at 108–09
(arguing to the IJ that a “felony,” as listed in I.C. § 18-205, is “broad and encompasses
both conduct that involves moral turpitude and conduct that does not”); id. at 24–26
(revealing Mr. Garcia-Morales’s express reliance on Mathis when arguing to the BIA that
a conviction under I.C. § 18-205 is not categorically a CIMT in part because under Idaho
caselaw “jury unanimity [is not required] as to which [underlying] felony was
committed”); id. at 10 (showing the government’s understanding in its brief to the BIA
that Mr. Garcia-Morales “argues that his crime, Accessory to a Felony under 18-205(1) is
categorically not a crime involving moral turpitude under Mathis”); cf. Zu-Chen Horng v.
Lynch, 658 F. App’x 415, 417–18 (10th Cir. 2016) (unpublished) (remanding for the BIA
to perform a Mathis divisibility analysis where the BIA did not initially have a proper
opportunity to perform a Mathis analysis since, even though the petitioner had argued that
his statute of conviction was overbroad and indivisible, Mathis was issued after the BIA
had released its decision).
15
statutory text, and (3) the record of conviction.3 Titties, 852 F.3d at 1269–71
(applying “the three tools the Supreme Court identified in Mathis”); see Degeare,
884 F.3d at 1247–48 (noting that “[i]n deciding whether a state statute’s
alternatives are elements or means, we have several tools at our disposal,” then
describing the Mathis tools). Specifically, we may use these tools to decide
whether the potential “statutory options” (i.e., alternatives)—here, the particular
underlying felonies—are elements that form the basis for different crimes under
the statute or just diverse factual means of satisfying “a single element of a single
crime [i.e., the element of ‘a felony’].” Mathis, 136 S. Ct. at 2249, 2256; accord
Hamilton, 889 F.3d at 692; United States v. Abeyta, 877 F.3d 935, 941 (10th Cir.
2017). “Each source [i.e., tool] may definitively show whether the [statutory]
alternatives constitute elements or means.” Hamilton, 889 F.3d at 692. However,
if we ultimately employ all three tools and are still uncertain whether “a statute’s
alternatives are elements rather than means, the statute isn’t divisible and we must
eschew the modified categorical approach.” Degeare, 884 F.3d at 1248; accord
Hamilton, 889 F.3d at 692. Put another way, “[a] statute is divisible only if these
3
While Idaho courts have indicated strongly that I.C. § 18-205 is divisible as
to its two subsections, see, e.g., State v. Teasley, 58 P.3d 97, 100 (Idaho Ct. App. 2002)
(describing how I.C. § 18-205 “defines two types of accessories”—(1) withholding or
concealing a felony from law enforcement, and (2) harboring or protecting a person
charged with, or convicted of, a felony), this divisibility is not germane to our analysis.
For our purposes, the relevant divisibility question is whether I.C. § 18-205 is divisible as
to the underlying felony.
16
sources [i.e., the Mathis tools] allow us to conclude with ‘certainty’ that [the]
statute contains alternative elements.” Jimenez, 893 F.3d at 712 (quoting Titties,
852 F.3d at 1268). We must be “at least more certain than not that a statute’s
alternatives constitute elements” rather than means. Degeare, 884 F.3d at 1248
n.1.4 However, the elements-means determination will be “easy” in “many” cases,
with “indeterminacy . . . more the exception than the rule.” Mathis, 136 S. Ct. at
2256–57.
This is one such easy case: we conclude that I.C. § 18-205 is indivisible as
to the underlying felony. More specifically, we cannot reach the necessary
threshold of certainty that the particular underlying felonies that § 18-205’s
general term, “a felony,” effectively embodies are elements, rather than means.5
4
According to Mathis, this certainty requirement stems from the “demand for
certainty” imposed by the Court’s seminal, categorical-approach case, Taylor v. United
States, 495 U.S. 575 (1990). Mathis, 136 S. Ct. at 2257 (quoting Shepard v. United
States, 544 U.S. 13, 21 (2005)). As in Degeare, we have no need to determine here, as a
matter of first impression, “what quantum of certainty Taylor requires,” because we
would be hard pressed to be “more certain than not that [§ 18-205’s] alternatives [i.e.,
particular felony offenses] constitute elements,” rather than means. Degeare, 884 F.3d at
1248 n.1. And Taylor requires “at least” that much certainty. Id. (emphasis omitted).
5
At least arguably, the general statutory term “a felony” in I.C. § 18-205 is a
species of “single umbrella term,” as that term is used in Mathis. 136 S. Ct. at 2257.
Typically, “[a]n ‘umbrella term’ is a broad term, like ‘premises,’ that encompasses the
other terms in a series.” Hamilton, 889 F.3d at 696. When used “in the charging
document or [case-specific] instructions” (as well as perhaps in the statute itself or in
court-approved pattern instructions), an umbrella term “can reveal that the specific
[statutory] alternatives are means of satisfying a single element [i.e., the umbrella term
(continued...)
17
Indeed, our application of Mathis’s tools strongly suggests, if not clearly
establishes, that the particular felonies are merely means under the statute.
5
(...continued)
itself].” Titties, 852 F.3d at 1268 n.11; see Hamilton, 889 F.3d at 696 (“The use of an
umbrella term could indicate that the [statutory] alternatives constitute means rather than
elements.”); see also Hamilton, 889 F.3d at 700 & n.1 (Briscoe, J., concurring) (using
Mathis’s guidance concerning an umbrella term in analyzing the elements-means import
of the statutory text at issue, and observing that Mathis discussed the umbrella term in
applying the tool of peeking at conviction-related records but the Court “left it unclear
whether umbrella term analysis was limited to merely that part of the divisibility analy-
sis,” and concluding that “it is not so limited”). Unlike the situation in Mathis, however,
there is no express list of statutory alternatives in I.C. § 18-205. See Mathis, 136 S. Ct. at
2250 (noting that the Iowa statute “reaches a broader range of places: ‘any building,
structure, [or] land, water, or air vehicle.’” (alteration in original) (quoting Iowa Code §
702.12 (2013))); see also Titties, 852 F.3d at 1277–78, (Phillips, J., dissenting) (detailing
Mathis’s list of statutory alternatives tied to the umbrella term “occupied structure”). In
contrast, the statutory alternatives at issue here—i.e., the particular underlying felo-
nies—are effectively embodied in § 18-205’s general statutory term “a felony.” As we
aptly described such underlying offenses in an analogous case, Jimenez, the offenses are
“ulterior crimes,” 893 F.3d at 712, in the sense that they are not expressly “apparent” but
rather are “latent,” Ulterior, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (2002).
Ultimately, we decline to definitively opine on whether I.C. § 18-205’s general term, “a
felony,” should be deemed a “single umbrella term” under Mathis’s rubric, nor relatedly
do we accord the use of this term in certain contexts special significance under the
premise that it is an umbrella term within the meaning of Mathis. The parties do not
assert that the “a felony” component of § 18-205 is an umbrella term under Mathis, and
“Mathis says this [umbrella-term analysis] is just one of several ways the means/elements
inquiry might be settled.” Titties, 852 F.3d at 1268 n.11. We are content to follow the
lead of our analogous decision, Jimenez, where we conducted a Mathis divisibility
analysis aimed at determining whether the petitioner’s offense was a CIMT—and, more
specifically, whether the statute at issue, which used the general statutory language “a
crime therein,” was divisible as to the “ulterior” crimes effectively embodied in this
language —without invoking the “umbrella term” concept of Mathis. Jimenez, 893 F.3d
at 707.
18
Consequently, I.C. § 18-205 “isn’t divisible [as to the underlying felony].”
Degeare, 884 F.3d at 1248.
As applied here, this means that the particular felony as to which Mr.
Garcia-Morales was an accessory is not an element of his conviction. And, under
the applicable categorical approach, his statute of conviction, I.C. § 18-205,
“sweeps more broadly,” Descamps, 570 U.S. at 261, than the definition of a
CIMT, because it encompasses some underlying felonies that are not CIMTs. The
upshot is that Mr. Garcia-Morales has satisfied his burden to establish that I.C.
§ 18-205 is categorically not a CIMT, and the BIA erred in concluding to the
contrary.
2
We start our analysis by considering Idaho state-court decisions. When
“state-court decisions . . . answer the question[,] . . . . ‘a sentencing judge need
only follow what [they] say[].’” Titties, 852 F.3d at 1268 (quoting Mathis, 136 S.
Ct. at 2256); see also Mathis, 136 S. Ct. at 2256 (noting that when “a state court
decision definitively answers the question,” then “a sentencing judge need only
follow what it says” (emphasis added)).
The Supreme Court of Idaho appears to have indicated, in effect, that I.C.
§ 18-205 is indivisible as to the underlying felony—viz., the general statutory term
“a felony” is indivisible. In State v. Lampien, 223 P.3d 750 (Idaho 2009), that
19
court reviewed the sufficiency of an I.C. § 18-205 charging document (i.e., a
criminal information), which, in relevant part, stated the following:
MELANIE ANN LAMPIEN is accused by this information of the
crime of HARBORING A WANTED FELON, Idaho Code § 18-
205, a felony, committed as follows, to-wit: That the said
MELANIE ANN LAMPIEN . . . did with knowledge that
NICHOLAS VERL McKENNA was charged with a felony
probation violation, . . . did conceal, harbor and protect
NICHOLAS VERL McKENNA . . . .
Id. at 754. After pleading guilty, the defendant, Ms. Lampien, appealed her
conviction, arguing that the trial court had lacked jurisdiction. Specifically, she
contended that the facts in the charging document did not amount to a violation of
I.C. § 18-205 because they only mentioned that the principal was charged with a
“felony probation violation,” which itself is not a felony. Id.
After mentioning that the charging document had to “state facts essential to
establish” an I.C. § 18-205 offense, the court upheld the conviction, explaining
that “so long as the charging document . . . g[ave] notice to Lampien that she was
harboring an individual who had been convicted of a felony, the district court had
jurisdiction over her case.” Id. at 755 (emphasis added). The court made note of
the circumstances surrounding Ms. Lampien’s guilty plea: in entering her plea, she
had admitted to knowing that the criminal principal (to whom she was an
accessory) had previously been convicted of two felonies. Id. As the court
reasoned, this fact showed that the use of “felony probation violation” in the
20
charging document gave an adequate level of notice to Ms. Lampien that her
actions would have the effect of harboring and protecting an individual who had
been convicted of a felony. See id.
Thus, the court reasoned, the charging instrument “conform[ed] to the
language of [I.C. §] 18-205” and “properly charged an offense” under that statute.
Id. at 755–56. Moreover, the court bolstered its reasoning by pointing out that,
definitionally, any person wanted for a felony probation violation “will necessarily
have been” charged with an underlying felony at some point. Id. at 756.
Lampien’s analysis indicates that an I.C. § 18-205 charging document may
permissibly fail to identify the defendant’s particular underlying felony. Indeed,
the charging document in Lampien did not even expressly use the statute’s general
term, “a felony” (though it referred to “a felony probation violation”). As the
court reasoned, the charging document simply had to put the defendant on notice
that she was alleged to have been an accomplice to the commission of a (i.e.,
some) felony, seemingly without any regard for the particular identity of that
felony.
Tellingly, if the particular underlying felony had been an element of the
offense, the Lampien court likely would have insisted on it being included in the
charging document that the defendant had to accept as part of her guilty plea. See
Mathis, 136 S. Ct. at 2248 (noting that, “at a plea hearing, the[] [elements] are
21
what the defendant necessarily admits when he pleads guilty”); accord Titties, 852
F.3d at 1267; see also I.C. § 19-1409 (noting that an “indictment must contain
. . . . [a] statement of the acts constituting the offense in ordinary and concise
language”); I.C. § 19-1304 (“The provisions of this code in relation to indictments,
and all other provisions of law applying to prosecutions upon indictments . . . shall
in the same manner and to the same extent, as near as may be, apply to
informations and all prosecutions and proceedings thereon.”).6 Thus, under
Lampien’s reasoning, if a document charging an offense under I.C. § 18-205 were
to identify the particular underlying felony that the defendant was an accessory to,
6
Notably, the Lampien court’s reference to the defendant’s knowledge of the
prior commission of two felonies arguably suggests that a single accessory charge under
I.C. § 18-205 may be predicated on a defendant’s knowledge of the prior commission of
more than one felony. See Lampien, 223 P.3d at 755. However, if particular underlying
felonies were elements of § 18-205, they would be the basis for separate and distinct
accessory crimes that ordinarily would not be alleged in a single accessory charge. See
Hamilton, 889 F.3d at 692 (“A statute comprises ‘multiple, alternative versions of the
crime’ if the statutory options constitute elements rather than means.” (quoting Mathis,
136 S. Ct. at 2248–49)). Compare I.C. § 19-1432 (noting that, given certain similarities
or factual connections, “[t]wo (2) or more offenses may be charged in the same
indictment or information in a separate count for each offense” (emphasis added)), and
State v. Major, 725 P.2d at 115, 118 (Idaho 1986) (noting that if the defendant “was
charged with two offenses under the same count, a pleading defect referred to as
‘duplicity’” occurred (quoting WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE §
19.2(e) (4th ed. 1984))), with State v. Bishop, 405 P.2d 970, 977 (Idaho 1965) (“We have
repeatedly held that when a statute defining a crime provides that the crime may be
committed by several means or by several acts, any or all of such means or acts may be
charged in the conjunctive, and that such a charge is not duplicitous, and charges but one
offense . . . .” (collecting cases)). This point bolsters the idea that these underlying crimes
are not elements at all, but rather merely means of satisfying the single, general
element—“a felony.”
22
it would be doing more than Idaho law actually requires. Cf. Hamilton, 889 F.3d
at 703 (Briscoe, J., concurring) (“[O]ur inquiry into state sources of law is not an
inquiry to determine the charging practices of Oklahoma prosecutors. Rather, we
are asked to decide the legal question of whether the statutory alternatives
contained in § 1435 are elements or means.”). More specifically, the document
would simply be specifying the means that the principal used to commit the
requisite felony. Those means, however, would be “legally extraneous
circumstances” that would be unnecessary to establish a defendant’s guilt of the
charged offense. Descamps, 570 U.S. at 270; accord Mathis, 136 S. Ct. 2249.
Moreover, the Idaho Court of Appeals’s analysis in Teasley, 58 P.3d at 97,
anticipated the guidance that the Idaho Supreme Court subsequently would provide
in Lampien concerning the means status of the particular felony under § 18-205.
There, the court examined the propriety of a jury instruction issued for an alleged
violation of I.C. § 18-205. The instruction was as follows:
The elements of the crime of HARBORING A WANTED FELON
with which the Defendant PATRICIA MARIE TEASLEY, is
charged, are:
¾ That on August 31, 2000
¾ In Boundary County, State of Idaho,
¾ the Defendant PATRICIA MARIE TEASLEY,
¾ with knowledge that Dale Delmont Reed was charged with, or
convicted of a felony,
¾ willfully harbored and protected Dale Delmont Reed.
Teasley, 58 P.3d at 100 (emphasis added). Though this instruction did not identify
23
a particular underlying felony—simply using instead the statute’s general term “a
felony”—the court nonetheless approved of it: “This instruction requires that the
jury determine Teasley had knowledge that Reed was charged with, or convicted
of a felony, to be found guilty for harboring a felon. As th[at] instruction
comport[ed] with [the Teasly court’s] interpretation of I.C. § 18-205, [it]
determine[d] the district court did not err in providing this instruction to the jury.”
Id. at 100–101. Notably, the Teasley court made this point shortly after noting
that jury instructions should contain “all matters of law necessary for the jury’s
information.” Id. at 99. Accordingly, the Teasley court seems to have reached the
same conclusion that was later reached in Lampien—that the particular underlying
felonies effectively embodied in I.C. § 18-205’s term “a felony” are means, not
elements.
Beyond Teasley’s analysis of the import of the instructions at issue there,
Idaho’s uniform jury instructions “provide useful guidance on the content of state
law.” Hamilton, 889 F.3d at 693; see Titties, 852 F.3d at 1270 (“Oklahoma’s
Uniform Jury Instructions provide an additional source of state law guidance.”);
De Leon, 808 F.3d at 1231 n.9 (“[U]niform jury instructions have often guided . . .
[the Tenth Circuit] in defining the bounds of [state] criminal law.”); see also
United States v. Harris, 844 F.3d 1260, 1266 n.2 (10th Cir. 2017) (incorporating
24
Colorado Criminal Jury Instructions into its divisibility analysis).7 Specifically,
the Idaho Supreme Court has expressly adopted uniform criminal jury instructions
and “recommended that whenever [they] contain an instruction applicable to a case
and the trial judge determines that the jury should be instructed on that subject,
the judge should use the [uniform] instruction . . . , unless the judge finds that a
different instruction would more adequately, accurately or clearly state the law.”
Idaho S. Ct. Order at 1 (dated Aug. 26, 2010). The uniform instruction pertaining
to the § 18-205 offense states:
A person who knows a felony was committed, and willfully
conceals it from a [peace officer] [judge] [magistrate] [grand jury]
[petit jury] [or] [harbors and protects the person charged with or
convicted thereof,] is guilty as an accessory.
Idaho Criminal Jury Instrs. § 310 (emphasis added). By the plain terms of these
instructions, jurors are obliged to find only that “a felony” has been committed;
they need not agree what that felony was. And, if a jury does not “have to agree
on a particular [underlying felony] to convict,” the particular felony is not an
element of the crime. Titties, 852 F.3d at 1270–71; see Mathis, 136 S. Ct. at 2249
(observing that where a “list merely specifies diverse means of satisfying a single
7
Indeed, analyzing such instructions in connection with Mathis’s first tool, as
court-approved guidance concerning “what proofs are required to convict” under the
statute at issue, is arguably most apt in circumstances like these, “when a defendant pled
guilty to the offense at issue,” because, in such a situation, there would be no jury trial,
and there would be no case-specific jury instructions in the conviction record documents.
Hamilton, 889 F.3d at 701 n.3 (Briscoe, J., concurring).
25
element of a single crime—or otherwise said, spells out various factual ways of
committing some component of the offense—a jury need not find (or a defendant
admit) any particular item”); Degeare, 884 F.3d at 1251–52 (noting that “Mathis
makes jury unanimity the touchstone of the means-or-elements inquiry” and that
“we have likewise adopted a unanimity-focused approach to the means-or-elements
question”); cf. Jimenez, 893 F.3d at 714 n.4 (“[W]e are not persuaded that
Colorado’s pattern jury instructions shed much light on the question before us.
The first degree trespass instruction includes a space for courts to insert the name
of the ulterior [i.e., underlying] offense . . . . But the pattern instruction does not
tell us whether a jury would have to reach a unanimous determination if multiple
ulterior offenses are at issue.” (citation omitted)); cf. also Lucio-Rayos, 875 F.3d
at 580 (“Colorado’s Criminal Jury Instructions indicate the . . . state theft statute is
divisible by setting forth different pattern instructions” for each statutory
alternative.).
The foregoing state-law authorities—that is, the appellate caselaw and the
uniform jury instructions—appear to establish with sufficient definitiveness that
I.C. § 18-205 is indivisible as to the underlying felony. More specifically, they
appear to show that § 18-205’s general statutory term “a felony” does not
effectively embody alternative, particular felonies as elements, which form
separate accessory offenses. If true, the BIA erred in applying the modified
26
categorical approach in resolving the CIMT question. See, e.g., Hamilton, 889
F.3d at 692 (holding that the modified categorical “approach is permissible only if
the statute of conviction is divisible” (emphasis added)); Degeare, 884 F.3d at
1246 (noting that we “apply the modified categorical approach” when the statute is
divisible). However, as relevant here, the government does invoke some Idaho
caselaw in arguing that we cannot merely “follow what [these authorities] say[].”
Mathis, 136 S. Ct. at 2256 (noting that when “a state court decision definitively
answers the [elements-means] question,” then “a sentencing judge need only
follow what it says”); see also Hamilton, 889 F.3d at 692 (noting that “[e]ach” of
Mathis’s three tools “may definitively” answer the elements-means question).
Specifically, the government cites State v. Hauser, 150 P.3d 296 (Idaho Ct.
App. 2006), which involved a conviction for the alleged violation of the first
subsection of I.C. § 18-205, which, as noted, criminalizes the willful withholding
or concealing of knowledge of a prior felony from certain officials or official
bodies. There, the defendant argued that “the State failed to present evidence
from which a jury could find all of the required elements of the accessory after the
fact charge” under § 18-205 because “the State did not prove she had actual
knowledge of a felony.” Id. at 299–300.
The government highlights that, in Hauser, the defendant “concede[d] that
the State presented sufficient evidence to prove the elements of the underlying
27
offense”—felony malicious injury to property, I.C. § 18-7001—however, she
“assert[ed] that the State did not present evidence by which a jury could find that
she was an accessory to that crime [under I.C. § 18-205].” Id. at 300. The
government seemingly infers from the Hauser defendant’s concession concerning
the State’s ability to prove the particular underlying felony that “the underlying
felony is relevant to a conviction [for an accessory offense] under § 18-205.”
Aplee.’s Resp. Br. at 10. In other words, the government seems to understand
Hauser as establishing that the underlying felony is an element of a § 18-205
offense. Contrary to the government’s belief, however, Hauser did not reach such
a conclusion and is unavailing.
More specifically, we discern no indication in Hauser that the court’s
description of the defendant’s argument meant that the Hauser court believed that
the State was obliged to prove—as an element of a § 18-205 offense—that the
defendant was an accessory with respect to a particular underlying felony (i.e.,
felony malicious injury to property). Indeed, the court’s analysis in rejecting the
defendant’s actual-knowledge argument belies the notion that a particular
underlying felony is an element of the offense.
In defining the “crime of accessory,” the court parroted the plain terms of
the statute, noting that an accessory must “hav[e] knowledge that a felony has been
committed”; it did not go further and assert that this knowledge must relate to a
28
particular underlying felony. Hauser, 150 P.3d at 300 (emphasis added).
Furthermore, in rebuffing the defendant’s contention that she must have actual
knowledge that a felony has been committed—by which she apparently meant that
she must be shown to have actually witnessed the commission of the felony—the
court stated the following: “the knowledge requirement of I.C. § 18–205 . . . is
met if the person charged as an accessory had such information as would lead a
reasonable person to conclude that a felony had been committed.” Id. (emphasis
added). In announcing this holding, the court did not even hint that the requisite
knowledge involves an additional layer of specificity pertaining to the prior
commission of a particular underlying felony. Accordingly, Hauser does nothing
to support the government’s argument that the particular underlying felony is an
element of the offense.8
8
The government offers additional authorities in support of its divisibility
argument. None of them are availing. Some are inapposite because they pertain to 18
U.S.C. § 3, the federal accessory statute—not to I.C. § 18-205. See U.S. SENTENCING
GUIDELINES MANUAL § 2X3.1(a)(1) (U.S. SENTENCING COMM’N 2016); see also United
States v. Henning, 77 F.3d 346, 350 (10th Cir. 1996). And the other cited authority that
does address I.C. § 18-205 does not indicate that the particular underlying felony is an
element of the offense. The government merely cites the statement from Teasley that “the
text [of I.C. § 18-205] plainly requires that an accessory have knowledge on some level
that a felony has been committed.” 58 P.3d at 100 (emphasis added). As discussed
supra, this language actually undercuts the government’s position because it cannot be
read naturally as indicating that the statute requires a showing that the defendant knew
that a particular underlying felony had been committed.
29
In sum, the state-law authorities—i.e., the appellate caselaw and the uniform
jury instructions—appear to establish with sufficient definitiveness that
I.C. § 18-205 is indivisible as to the underlying felony, such that we “need only
follow what [they] say[].” Mathis, 136 S. Ct. at 2256. The soundness of this
conclusion, moreover, is underscored by our analogous decision in Jimenez, where,
despite a seemingly murkier picture painted by the state-law authorities—including
pattern jury instructions with “a space for courts to insert the name of the ulterior
[i.e., underlying] offense”—we nevertheless concluded that the trespass statute at
issue was “not divisible as to the ulterior offense.” Jimenez, 893 F.3d at 714 n.4,
716. Even if this were not so—based on Hauser or otherwise—our application
below of “the other tools in the Mathis toolbox” would lead us to side with Mr.
Garcia-Morales.9 Degeare, 884 F.3d at 1252; see also Hamilton, 889 F.3d at 696
(“Because [state] case law and uniform jury instructions do not show with
certainty whether the [statutory] alternatives constitute elements or means, we
must look elsewhere.”). More specifically, once we also apply these other
tools—such that all three are brought to bear—it is patent to us that we cannot
9
Neither party advances the “suggestion” here that when the Mathis tool of
state-law authorities “does appear to ‘definitively answer[ ]’ the means-or-elements
question, ‘the analysis ends’ and we can’t employ the other Mathis tools.” Degeare, 884
F.3d at 1250 n.2 (alteration in original) (second emphasis added) (quoting Mathis, 136 S.
Ct. at 2256; Pet’r’s Reply Br. at 5). Therefore, we need not assess the merits of this
suggestion here in applying Mathis’s other tools (i.e., those beyond state-law authority).
30
reach a sufficient level of certainty that the particular underlying felonies that
§ 18-205’s general term, “a felony,” effectively embodies are elements of the
offense, instead of merely various means of satisfying the “a felony” requirement.
Indeed, our application of Mathis’s tools strongly suggests, if not clearly shows,
that the particular felonies are merely means under the statute. Therefore,
§ 18-205 “isn’t divisible and we must eschew the modified categorical approach.”
Degeare, 884 F.3d at 1248.
3
Among the Mathis court’s tools is the text of the statute, and this tool
undercuts the government’s divisibility argument here. The plain text of the
statute provides no signs that the particular underlying felonies § 18-205
effectively embodies—but does not list—are anything other than diverse factual
means of satisfying the statutory element that “a felony” has been committed. I.C.
§ 18-205. Significantly, though it allows for exceptions, the Idaho Legislature
generally does not vary the punishment for § 18-205 violations depending on the
nature of the particular underlying felony. See I.C. § 18-206 (“Except in cases
where a different punishment is prescribed, an accessory is punishable by
imprisonment in the state prison not exceeding five (5) years, or by fine not
exceeding fifty thousand dollars ($50,000), or by both such fine and
imprisonment.”). This strongly suggests that the conduct that the Legislature
31
aimed to punish under § 18-205 was being an accessory to some committed felony,
irrespective of the identity of the particular felony. Cf. Mathis, 136 S. Ct. at 2256
(“If statutory alternatives carry different punishments, then . . . they must be
elements.”); accord Degeare, 884 F.3d at 1247–48.
This point is highlighted by comparing the text of Idaho’s accessory statute
to the federal accessory statute, 18 U.S.C. § 3. Specifically, the generally uniform
punishment scheme of I.C. § 18-205 differs markedly from its federal counterpart;
the latter directly correlates the severity of punishment for the accessory offense
with the severity of punishment for the underlying offense, mandating that “an
accessory after the fact shall be imprisoned by not more than one-half the
maximum term of imprisonment or . . . fined not more than one-half the maximum
fine prescribed for the punishment of the principal.” 18 U.S.C. § 3. Under
Mathis’s rubric, it is patent that, under the federal accessory statute, the particular
underlying offense is an element of the accessory offense. Henning, 77 F.3d at
350 (noting that, under the federal statute, “a defendant must have knowledge of
the underlying offense in order to be convicted as an accessory after the fact”); see
Rivens, 25 I. & N. Dec. at 627 n.5 (“[T]o be convicted of accessory after the fact
under [the federal statute,] 18 U.S.C. § 3, a defendant must not only know that the
person he or she assisted committed some felony offense but must also know what
the particular offense was.”).
32
The same cannot be said concerning the Idaho statute. More pointedly, the
statutory text of § 18-205 does not allow us to be sufficiently “certain that [the]
statute’s [underlying] alternatives [i.e., particular felonies] are elements rather than
means.” Degeare, 884 F.3d at 1248. Indeed, one might reasonably glean from the
statutory text that they are the latter. Therefore, the statutory text indicates that
§ 18-205 is not divisible as to the underlying felony.
4
Lastly, under Mathis’s rubric, “federal judges have another place to look:
the record of a prior conviction itself.” 136 S. Ct. at 2256. Specifically, Mathis
authorizes us to take a “‘peek’ at the record of conviction to determine whether
the [statutory] alternatives constitute elements or means.” Hamilton, 889 F.3d at
697; see Mathis, 136 S. Ct. at 2256–57. That peek confirms that we cannot be
sufficiently certain that the particular underlying felonies that § 18-205 effectively
embodies are elements of the offense instead of merely means. Indeed, the record
suggests that the underlying felonies are only means.
Mr. Garcia-Morales’s criminal information does not specify the particular
underlying felony associated with his accessory conviction. Instead, it only states
that he “did willfully withhold or conceal knowledge that a felony has been
committed by another person and withheld that information from law
enforcement.” A.R. at 166 (emphasis added). Yet, if commission of a particular
33
underlying offense was one of “the acts constituting the offense,” Idaho law
ordinarily would require it to be pleaded in the criminal charge. See I.C.
§ 19-1409 (noting that an “indictment must contain . . . . [a] statement of the acts
constituting the offense in ordinary and concise language”); see also id. § 19-1304
(“The provisions of this code in relation to indictments, and all other provisions of
law applying to prosecutions upon indictments . . . shall in the same manner and to
the same extent, as near as may be, apply to informations and all prosecutions and
proceedings thereon.”). The use of the general statutory term, “a felony” in Mr.
Garcia-Morales’s charging document thus signals that the requisite element is the
prior commission of “a felony,” without any regard for the identity of the particu-
lar underlying felony; such underlying felonies are nothing more than means to
satisfy the felony requirement. See Mathis, 136 S. Ct. at 2257.
***
In sum, our application of Mathis’s tools—state-law opinions (as well as
related, court-approved instructional authority), statutory text, and the record of
conviction—does not permit us to conclude with a sufficient level of certainty that
the particular underlying felonies embodied in § 18-205’s general term, “a felony,”
are elements rather than means. Consequently, “we hold that this portion of the
statute is not divisible as to the [underlying felony],” and “[Mr. Garcia-Morales’s]
conviction does not qualify as a [CIMT].” Jimenez, 893 F.3d at 716. In light of
34
this conclusion, we must hold that the BIA’s ruling to the contrary is irredeemably
flawed and cannot be sustained.
As a last gasp, the government contends that, even if § 18-205 is indivisible
as to the underlying felony, the BIA was still permitted to consider the particular
underlying felony in its CIMT analysis. As support for this contention, the
government points to Shaw v. Sessions, 898 F.3d 448 (4th Cir. 2018), where, based
on BIA precedent and its own precedent, the Fourth Circuit held that the BIA can
consider the underlying criminal object of a conspiracy conviction in a categorical
analysis to determine whether an alien is removable—even though the underlying
criminal object is not an element of the conspiracy offense. See id. at 452
(“Shaw’s argument rests on the incorrect assumption that the [BIA] must analyze
inchoate crimes—attempt, conspiracy, and solicitation—like any other: by looking
only to the elements of the statute criminalizing the inchoate conduct.”). As the
court reasoned, it is ostensibly appropriate to treat inchoate crimes differently
when applying the categorical approach because such crimes distinctively “presup-
pose a purpose to commit another crime.” Id. (alteration omitted) (quoting Matter
of Beltran, 20 I. & N. Dec. 521, 526–27 (BIA 1992)).
The government’s argument rests on the premise that the crime at issue
here—i.e., an accessory offense (after the commission of a felony)—is also an
inchoate crime. But the government has not provided us with any authority to
35
support this proposition—not in its filings, and not when pressed at oral argument.
And, notably, the case it cites—Shaw—lists examples of inchoate crimes but does
not expressly include amongst them an accessory offense. See id. Moreover,
classifying an accessory offense as an inchoate crime appears to be inconsistent
with both Tenth Circuit and BIA precedent. See United States v. Manatau, 647
F.3d 1048, 1052 (10th Cir. 2011) (distinguishing between “the law of inchoate
offenses” and “the law of accessory liability”); In re Batista-Hernandez, 21 I. &
N. Dec. 955, 958 (BIA 1997) (“[A]ccessory after the fact . . . does not constitute
an inchoate crime because the act . . . must, by its very nature, take place subse-
quent to the completion of the underlying felony.”). Given all this, the govern-
ment’s conclusory suggestion that Idaho’s accessory offense is an inchoate crime
cannot gain traction. Therefore, we reject its contention that Shaw should guide
our resolution of this appeal.
III
For the foregoing reasons, we conclude that the BIA erred in determining
that Mr. Garcia-Morales failed to carry his burden of proof to establish that his
I.C. § 18-205 conviction is categorically not a CIMT. Consequently, Mr. Garcia-
Morales is not precluded on this basis from seeking cancellation of removal. We
thus GRANT Mr. Garcia-Morales’s petition and REMAND the case to the BIA
36
for further proceedings consistent with this order and judgment.
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
37