Ramirez-Vega v. Barr

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 29, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
IGNACIO RAMIREZ-VEGA,
Petitioner,
v. No. 18-9536
(Petition for Review)
WILLIAM P. BARR, United States
Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, KELLY, and PHILLIPS, Circuit Judges.
_________________________________
Ignacio Ramirez-Vega, a native and citizen of Mexico, seeks review of a Board of
Immigration Appeals’ (BIA’s) decision that dismissed his appeal from an Immigration
Judge’s (IJ’s) order denying his application for cancellation of removal. Exercising
jurisdiction under 8 U.S.C. § 1252, we deny Ramirez-Vega’s petition in part and dismiss
the remainder.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
BACKGROUND
Ramirez-Vega unlawfully entered the United States in 2002. In July 2008, the
Department of Homeland Security (DHS) personally served him with a notice to appear
before an IJ for a removal hearing. The notice charged him with being removable as
(1) an alien present in the country without admission or parole, and (2) an alien convicted
of a crime involving moral turpitude (CIMT). The notice listed three Colorado
convictions, only one of which is relevant to this case—a 2001 conviction for criminal
impersonation, see Colo. Rev. Stat. § 18-5-113(1)(d). Finally, although the notice
provided that the removal hearing would occur at a date and time “to be set,” R. at 928,
Ramirez-Vega was soon served with a notice of hearing designating the precise date and
time, id. at 927.
In November 2008, Ramirez-Vega appeared before an IJ, conceded removability
on the illegal-entry charge, but denied removability on the CIMT charge. The IJ
scheduled a follow-up hearing to allow Ramirez-Vega to apply for cancellation of
removal.
Several years later, Ramirez-Vega filed his cancellation application. An IJ
determined that Ramirez-Vega’s criminal-impersonation conviction was a CIMT, which
rendered him ineligible for cancellation.
In May 2018, the BIA agreed with the IJ and dismissed Ramirez-Vega’s appeal.
Specifically, the BIA noted that in Veloz-Luvevano v. Lynch, 799 F.3d 1308, 1315
(10th Cir. 2015), this court held that a violation of Colorado’s criminal-impersonation
statute is categorically a CIMT. Ramirez-Vega petitioned this court for review.
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In August 2018, while his petition for review was pending, Ramirez-Vega filed a
motion with the BIA to reopen his case based on Pereira v. Sessions, 138 S. Ct. 2105,
2109-10 (2018) (holding that a notice to appear that lacks the removal hearing’s time or
place does not stop the alien’s accrual of continuous presence in the United States for
purposes of cancellation of removal). This court abated the proceedings pending action
by the BIA.
In December 2018, the BIA denied Ramirez-Vega’s motion and this court lifted
the abatement. Briefing then proceeded on the original petition for review, as
Ramirez-Vega filed no new petition.
DISCUSSION
We review de novo the BIA’s legal determination that Ramirez-Vega’s
criminal-impersonation conviction makes him statutorily ineligible for cancellation of
removal. See Lucio-Rayos v. Sessions, 875 F.3d 573, 576 (10th Cir. 2017), cert. denied,
139 S. Ct. 865 (2019). If that crime qualifies as a CIMT, cancellation of removal is not
available. See 8 U.S.C. §§ 1229b(b)(1)(C), 1182(a)(2)(A)(i)(I).
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,
799 F.3d at 1312-13 (internal quotation marks omitted). To make the CIMT
determination, we apply the categorical approach, “compar[ing] the statutory definition
of th[e] offense with the generic definition of CIMT[,] and consider[ing] whether the
minimum conduct that would satisfy the former would necessarily also satisfy the latter.
3
Flores-Molina v. Sessions, 850 F.3d 1150, 1158 (10th Cir. 2017). “If every conviction
under a given state statute or city ordinance involves moral turpitude, then the conviction
is categorically a CIMT.” Id. (alterations and internal quotation marks omitted).
In Veloz-Luvevano, we applied the categorical approach and determined that
“criminal impersonation under Colo. Rev. Stat. Ann. § 18-5-113(1)(d) is categorically a
CIMT.” 799 F.3d at 1315. We are bound to follow this precedent. See Barnes v. United
States, 776 F.3d 1134, 1147 (10th Cir. 2015) (observing that “absent an intervening
Supreme Court or en banc decision justifying such action, we lack the power to overrule
prior Tenth Circuit precedent” (alterations and internal quotation marks omitted)).
To the extent Ramirez-Vega argues that Veloz-Luvevano has been overruled or
called into question by Flores-Molina, he is mistaken. Flores-Molina is a panel decision
that involved a Denver Municipal Code conviction for “giving false information to a city
official during an investigation.” 850 F.3d at 1155. In determining that a false-
information offense is not a CIMT, this court distinguished the criminal-impersonation
offense in Veloz-Luvevano on the basis that impersonation has a fraud component, either
because it “necessarily involves deception and necessarily causes harm” or “involve[s]
deception and a specific intent to harm or obtain a benefit at” someone’s expense. Id. at
1163, 1164. A false-information offense, on the other hand, has neither an explicit nor
implicit element of fraud. Id. at 1164.
In short, Ramirez-Vega is not eligible for cancellation of removal because he has a
prior CIMT conviction.
4
Ramirez-Vega next argues that in light of Pereira, “the immigration court had no
jurisdiction to issue an order of removal” because his notice to appear omitted the
scheduling details of the removal hearing. Pet’r’s Opening Br. at 42. Although
Ramirez-Vega raised this argument in his motion to reopen, he did not file a petition for
review designating the BIA’s order denying reopening. Thus, even though this court has
recently clarified that “the requirements relating to notices to appear are non-
jurisdictional,” Martinez-Perez v. Barr, No. 18-9573, 2020 WL 253553, at *3 (10th Cir.
Jan. 17, 2020), Ramirez-Vega’s argument is not before us. See Youkhana v. Gonzales,
460 F.3d 927, 933-34 (7th Cir. 2006) (“We cannot reach the substance of [petitioner’s]
argument because he never filed a separate petition for review of the BIA’s denial of his
motion to reopen.”); see also Bauge v. INS, 7 F.3d 1540, 1541 (10th Cir. 1993) (holding
that BIA’s denial of motion for reconsideration “is not before this court because no new
petition for review was filed”).
CONCLUSION
We deny Ramirez-Vega’s petition for review to the extent it challenges the
classification of his criminal-impersonation conviction as a CIMT. We dismiss the
petition to the extent it advances a Pereira claim.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
5