Perez-Castro v. Holder

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 12, 2013
Elisabeth A. Shumaker
Clerk of Court
MARIA ISABEL PEREZ-CASTRO,
a/k/a Isabel Perez,
Petitioner,
v. No. 12-9579
(Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,
Respondent.
ORDER AND JUDGMENT*
Before KELLY, Circuit Judge, PORFILIO, Senior Circuit Judge, and HOLMES,
Circuit Judge.
Maria Isabel Perez-Castro is a native and citizen of Mexico who illegally
entered the United States in 1996. She was arrested in Colorado and pleaded guilty
to one count of attempted second degree burglary of a building or occupied structure
under Colo. Rev. Stat. § 18-4-203(1). In removal proceedings she conceded that she
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
was inadmissible but sought cancellation of removal. To be eligible for cancellation,
petitioner had to show, among other things, that she “ha[d] not been convicted of an
offense under [8 U.S.C. §] 1182(a)(2),” 8 U.S.C. § 1229b(b)(1)(C), which includes “a
crime involving moral turpitude (other than a purely political offense) or an attempt
or conspiracy to commit such a crime,” id. § 1182(a)(2)(A)(i)(I).
An immigration judge (IJ) denied petitioner’s application for cancellation of
removal, reasoning that her conviction was a crime involving moral turpitude (CIMT)
because it involved the attempted burglary of a dwelling, and the Board of
Immigration Appeals (BIA) has held that “the conscious and overt act of unlawfully
entering or remaining in an occupied dwelling with the intent to commit a crime”
constitutes a CIMT, In re Louissant, 24 I. & N. Dec. 754, 758 (BIA 2009) (emphasis
added). The BIA agreed, concluding that petitioner failed to meet her burden of
showing that her conviction did not involve a dwelling.1 Petitioner now seeks our
review, contending that her conviction was not a CIMT because it did not involve the
attempted burglary of a dwelling. We disagree and therefore deny the petition for
review.
Whether a conviction constitutes a CIMT is a question of law that we review
de novo. Garcia v. Holder, 584 F.3d 1288, 1289 & n.2 (10th Cir. 2009). “Because a
1
The IJ determined that petitioner also was ineligible for cancellation because
she had not shown the requisite hardship to a qualifying relative, see 8 U.S.C.
§ 1229b(b)(1)(D), but the BIA based its decision solely on the CIMT ground and did
not reach the hardship ground.
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single member of the BIA decided [petitioner’s] appeal and issued a brief opinion,
we review the BIA’s decision as the final agency determination and limit our review
to issues specifically addressed therein.” Kechkar v. Gonzales, 500 F.3d 1080, 1083
(10th Cir. 2007) (internal quotation marks omitted).
“To determine whether a state conviction is a crime involving moral turpitude,
we ordinarily employ the categorical approach.” Rodriguez-Heredia v. Holder,
639 F.3d 1264, 1267 (10th Cir. 2011). “Under that approach, we are initially limited
to considering the statutory definition of the crime, not the underlying factual
circumstances of the crime.” Id. (ellipsis and internal quotation marks omitted).
However, we use a modified categorical approach when the state statute has been
used to convict offenders of offenses that do not constitute a CIMT. See id. at 1267,
1269. Colorado has used Colo. Rev. Stat. § 18-4-203(1) to convict offenders of
second degree burglary not involving a dwelling, which is defined by Colorado law
as “a building which is used, intended to be used, or usually used by a person for
habitation,” Colo. Rev. Stat. § 18-1-901(3)(g). See, e.g., People v. Moyer, 635 P.2d
553, 554 (Colo. 1981) (fenced enclosure used as outdoor dog kennel); People v.
Barefield, 804 P.2d 1342, 1344 (Colo. App. 1990) (county attorney’s office).
Therefore, our analysis begins with the modified categorical approach.
“Under the modified [categorical] approach, in a non-jury case such as this, we
may consider the charging documents, the written plea agreement, the transcript of
plea colloquy, and any explicit factual finding by the trial judge to which the
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defendant assented,” as well as “a presentence report.” Rodriguez-Heredia, 639 F.3d
at 1269 (brackets and internal quotation marks omitted). Here we have only the
charging document and a computerized printout documenting petitioner’s
conviction.2 Petitioner pleaded guilty to an added count of an information charging
that she,
by engaging in conduct constituting a substantial step toward the
commission of second degree burglary of a building, unlawfully,
feloniously, and knowingly remained unlawfully after a lawful or
unlawful entry into the building or occupied structure of Francisco
Macias-Acevedo . . . with the intent to commit therein the crime of
Harassment, in violation of section 18-4-203(1), and 18-2-101.
Admin. R. at 203-04; see also id. at 535-38. The documentation of her conviction
shows that she pleaded guilty to attempted second degree burglary of a building in
violation of Colo. Rev. Stat. § 18-4-203(1), and the conviction is identified as a
class 5 felony.3
2
Petitioner complains that the IJ impermissibly considered the police report of
the incident. We agree that this was improper under the BIA’s precedent. See In re
Teixeira, 21 I. & N. Dec. 316, 319-20 (BIA 1996). But the BIA did not consider the
police report or incorporate the IJ’s reasoning, and our review is limited to the
reasons the BIA gave. See Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir.
2006) (“As long as the BIA decision [in a single-member case] contains a discernible
substantive discussion, . . . our review extends no further, unless it specifically
incorporates or references an expanded version of the same reasoning [by the IJ].”).
3
Colo. Rev. Stat. § 18-4-203(1) provides that “[a] person commits second
degree burglary, if the person knowingly breaks an entrance into, enters unlawfully
in, or remains unlawfully after a lawful entry in a building or occupied structure with
intent therein to commit a crime against another person or property.” The completed
offense is a class 4 felony, see id. § 18-4-203(2), but attempted second degree
burglary is a class 5 felony, see id. § 18-2-101(4).
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Petitioner first argues that the Colorado statutory definitions of “building,”
“occupied structure,” and “dwelling” are not synonymous. Colorado defines
“building” as
a structure which has the capacity to contain, and is designed for the
shelter of, man, animals, or property, and includes a ship, trailer,
sleeping car, airplane, or other vehicle or place adapted for overnight
accommodations of persons or animals, or for carrying on of business
therein, whether or not a person or animal is actually present.
Colo. Rev. Stat. § 18-4-101(1). “Occupied structure” is defined as
any area, place, facility, or enclosure which, for particular purposes,
may be used by persons or animals upon occasion, whether or not
included within the definition of “building” in subsection (1) of this
section, and which is in fact occupied by a person or animal, and known
by the defendant to be thus occupied at the time he acts in violation of
one or more of sections 18-4-102 to 18-4-105.
Id. § 18-4-101(2). And again, “dwelling” is defined as “a building which is used,
intended to be used, or usually used by a person for habitation.” Id.
§ 18-1-901(3)(g).
Petitioner claims that to be a dwelling, a building must be used for habitation,
and the record of her conviction does not show that the building she attempted to
burglarize was used for habitation. But this argument overlooks a critical factor—
that petitioner has the burden of proof to show that her conviction did not involve a
dwelling. See 8 U.S.C. § 1229a(c)(4)(A)(i); Garcia, 584 F.3d at 1289-90. Parsing
the statutory definitions, it is clear that although not all buildings and occupied
structures are dwellings, all dwellings are buildings and occupied structures. Hence,
petitioner’s reliance on the absence of the word “dwelling” from the record of her
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conviction does not suffice to meet her burden of showing that her conviction did not
involve a dwelling.
Petitioner next argues that the fact she was convicted of a class 5 felony
precludes a finding that her offense involved a dwelling because attempted burglary
of a dwelling under the relevant Colorado statutes is a more-serious class 4 felony.
See id. §§ 18-2-101(4), 18-4-203(2)(a). But when a dwelling is involved in a
burglary of a building or occupied structure, Colorado treats the increase in offense
level as a sentencing enhancement, not an element of the offense. See People v.
Garcia, 940 P.2d 357, 359-63 (Colo. 1997). Thus, the mere fact that the sentencing
court did not impose the enhancement when accepting the plea agreement does not
establish that petitioner’s conviction did not involve a dwelling.
In her reply brief, petitioner also points out that the computerized
documentation of her conviction shows that she was originally charged with second
degree burglary of a dwelling under Colo. Rev. Stat. § 18-4-203(1) and (2)(a), the
latter of which contains the sentencing enhancement when a dwelling is involved, but
she was ultimately convicted of attempted second degree burglary under only
§ 18-4-203(1). She contends that this lends support to her argument that she was not
convicted of attempted burglary of a dwelling. However, she did not present this
argument to the BIA, so we lack jurisdiction to consider it. See 8 U.S.C.
§ 1252(d)(1) (setting forth exhaustion requirement); Rivera-Zurita v. INS, 946 F.2d
118, 120 n.2 (10th Cir. 1991) (holding that issue exhaustion is jurisdictional and
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review “does not extend to points an alien could have made before the [BIA] but did
not”). Furthermore, “[w]e decline to consider arguments raised for the first time in a
reply brief.” United States v. Murray, 82 F.3d 361, 363 n.3 (10th Cir. 1996).
The petition for review is denied. Petitioner’s application to proceed in forma
pauperis is denied as moot since she has paid the filing fee.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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