Munguia-Baeza v. Sessions

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 16, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
JOSE EDUARDO MUNGUIA-
BAEZA,
Petitioner,
v. No. 17-9523
(Petition for Review)
JEFFERSON B. SESSIONS, III,
United States Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before MATHESON, BACHARACH, and PHILLIPS, Circuit Judges.
_________________________________
Aliens are subject to removal when convicted of two or more crimes
involving moral turpitude. 8 U.S.C. § 1227(a)(2)(A)(ii). 1 Even when aliens
are otherwise removable, they can ordinarily seek cancellation of removal;
*
The parties do not request oral argument, and it would not materially
help us to decide this appeal. As a result, we decide the appeal based on
the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
1
Aliens are also subject to removal when convicted of an aggravated
felony. 8 U.S.C. § 1227(a)(2)(A)(iii). The government initially invoked
this provision but later withdrew it as a basis for removal.
but they are ineligible for cancellation of removal when convicted of an
aggravated felony. 8 U.S.C. § 1229b(a)(3).
These provisions underlie the appeal here, which was brought by
Mr. Jose Eduardo Munguia-Baeza, who is a citizen of Mexico trying to
remain in the United States as a lawful permanent resident. He was ordered
removed based on two past convictions for crimes that the Board of
Immigration Appeals regarded as crimes involving moral turpitude. And
when Mr. Munguia-Baeza sought cancellation of removal, the Board ruled
that he was ineligible based on a past conviction for an aggravated felony.
Mr. Munguia-Baeza filed a petition for review of the Board’s rulings.
On the challenge to removability, we grant the petition in part and remand
for further proceedings. On the challenge involving cancellation of
removal, we dismiss the petition for lack of jurisdiction.
I. Background
Alleging conviction of crimes involving moral turpitude and an
aggravated felony, the government presented evidence of Colorado
convictions for
 identity theft (Colo. Rev. Stat. § 18-5-902(1)(a)),
 first-degree aggravated motor vehicle theft (Colo. Rev. Stat.
§ 18-4-409(2), (3)(a)), and
 second-degree burglary of a building (Colo. Rev. Stat.
§ 18-4-203(1)).
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Mr. Munguia-Baeza denied removability and applied for cancellation of
removal.
An immigration judge found Mr. Munguia-Baeza removable, treating
identity theft and aggravated motor vehicle theft as crimes involving moral
turpitude. In addition, the immigration judge denied the application for
cancellation of removal, classifying the past conviction for second-degree
burglary as an aggravated felony. The immigration judge reasoned that
second-degree burglary met one definition of an aggravated felony: “a theft
offense (including receipt of stolen property) or burglary offense for which
the term of imprisonment is at least one year.” 8 U.S.C. § 1101(a)(43)(G).
Mr. Munguia-Baeza appealed to the Board of Immigration Appeals,
arguing that he was not removable and that he was eligible for cancellation
of removal. On removability, he conceded that identity theft constituted a
crime involving moral turpitude. But he denied the existence of a second
crime involving moral turpitude, insisting that first-degree aggravated
motor vehicle theft would not qualify. On cancellation of removal,
Mr. Munguia-Baeza argued that his conviction for second-degree burglary
did not constitute an aggravated felony because Colorado’s version of the
crime did not categorically match the generic definition of burglary. The
Board rejected both arguments.
Mr. Munguia-Baeza petitioned this court for review, and we
remanded for the Board to reconsider whether second-degree burglary in
3
Colorado qualified as an aggravated felony in light of the Supreme Court’s
recently issued opinion in Mathis v. United States, 136 S. Ct. 2243 (2016).
Munguia-Baeza v. Lynch, No. 15-9580 (10th Cir. June 27, 2016).
On remand, the immigration judge found that second-degree burglary
did not constitute an aggravated felony under § 1101(a)(43)(G), reasoning
that
 generic burglary “requires unlawful entry into a building or
other structure” (Mathis, 136 S. Ct. at 2250 (internal quotation
marks omitted)) and
 Colorado defines a “building” to include “a ship, trailer,
sleeping car, airplane, or other vehicle” (Colo. Rev. Stat.
§ 18-4-101(1)).
Based on this reasoning, the immigration judge ruled that Colorado’s
burglary statute spanned beyond the generic definition of burglary. Admin.
R. at 86-87. Nevertheless, the immigration judge ruled that the prior
burglary would qualify as an aggravated felony under a different statutory
provision (8 U.S.C. § 1101(a)(43)(U)), which classifies an attempt to
commit a listed offense (including theft under § 1101(a)(43)(G)) as an
aggravated felony.
Mr. Munguia-Baeza again appealed to the Board. But he did not
challenge the immigration judge’s new rationale for treating second-degree
burglary as an aggravated felony. Instead, he again argued that Colorado’s
version of second-degree burglary spanned beyond the generic definition of
burglary. The Board affirmed.
4
Mr. Munguia-Baeza challenges the Board’s conclusion that he is
 removable on the ground that first-degree aggravated motor
vehicle theft is a crime involving moral turpitude and
 ineligible for cancellation of removal based on a prior
conviction for an aggravated felony.
II. Removal
We first consider the Board’s grounds for removal. Mr. Munguia-
Baeza concedes that his prior conviction for identity theft would constitute
a crime involving moral turpitude. But he challenges characterization of
first-degree aggravated motor vehicle theft as a crime involving moral
turpitude. For this contention, he alleges that Colorado’s criminal statute
on first-degree aggravated motor vehicle theft criminalizes takings
regardless of whether they are permanent or temporary. In his view, the
crime would involve moral turpitude only if the Colorado statute had been
restricted to permanent takings.
A. Waiver
The government contends that Mr. Munguia-Baeza waived this
challenge by failing to adequately brief the issue in this court. We
disagree, concluding that Mr. Munguia-Baeza adequately developed this
challenge by explaining his argument and providing legal citations. We
will therefore consider the argument.
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B. Merits
In considering this argument, we engage in de novo review. See
Rodriguez-Heredia v. Holder, 639 F.3d 1264, 1267 (10th Cir. 2011). This
review calls for the “categorical approach,” where we compare the
elements of the offense to the definition of a crime involving moral
turpitude. See Flores-Molina v. Sessions, 850 F.3d 1150, 1158 (10th Cir.
2017).
“Generally speaking, moral turpitude refers to conduct which is
inherently base, vile, or depraved, contrary to the accepted rules of
morality.” Id. at 1159 (brackets and internal quotation marks omitted).
Typically, a theft offense would qualify only if it requires an intent to
permanently deprive the victim of property. See Lucio-Rayos v. Sessions,
875 F.3d 573, 578 (10th Cir. 2017).
“[A] person commits first degree aggravated motor vehicle theft if he
or she ‘knowingly obtains or exercises control over the motor vehicle of
another without authorization or by threat or deception,’ and one or more
of eight enumerated aggravating circumstances is present.” People v.
Manier, 197 P.3d 254, 259 (Colo. App. 2008) (quoting Colo. Rev. Stat.
Ann. § 18-4-409(2)). 2
2
The Colorado statute on first-degree aggravated motor vehicle
theft provides:
6
The Board considered first-degree aggravated motor vehicle theft as
a crime involving moral turpitude, reasoning that an element is “the intent
to permanently deprive the owner of the vehicle.” Admin. R. at 402 (citing
People v. Andrews, 632 P.2d 1012 (Colo. 1981), and People v. Rivera,
524 P.2d 1082 (Colo. 1974)). But the statute does not require a specific
intent to permanently deprive, and Colorado’s crime of first-degree
A person commits aggravated motor vehicle theft in the first
degree if he or she knowingly obtains or exercises control over
the motor vehicle of another without authorization or by threat
or deception and:
(a) Retains possession or control of the motor vehicle for
more than twenty-four hours; or
(b) Attempts to alter or disguise or alters or disguises the
appearance of the motor vehicle; or
(c) Attempts to alter or remove or alters or removes the
vehicle identification number; or
(d) Uses the motor vehicle in the commission of a crime
other than a traffic offense; or
(e) Causes five hundred dollars or more property damage,
including but not limited to property damage to the motor
vehicle involved, in the course of obtaining control over or in
the exercise of control of the motor vehicle; or
(f) Causes bodily injury to another person while he or she is
in the exercise of control of the motor vehicle; or
(g) Removes the motor vehicle from this state for a period of
time in excess of twelve hours; or
(h) Unlawfully attaches or otherwise displays in or upon the
motor vehicle license plates other than those officially issued
for the motor vehicle.
(3) Aggravated motor vehicle theft in the first degree is a:
(a) Class 4 felony if the value of the motor vehicle or motor
vehicles involved is twenty thousand dollars or less . . . .
Colo. Rev. Stat. § 18-4-409(2), (3)(a) (amended Aug. 6, 2014).
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aggravated motor vehicle theft “is not defined in terms of either a specific
intent to permanently deprive or an act which has the effect of permanently
depriving another of the use or benefit of the property taken.” People v.
Andrews, 632 P.2d 1012, 1015 n.4 (Colo. 1981); see People v. Giem, 378 P.3d
809, 815-16 (Colo. App. 2015) (stating that Colorado’s statute for first-
degree aggravated motor vehicle theft requires that the act be knowing but
does not require specific intent). 3
The government relies largely on People v. Meads, 58 P.3d 1137
(Colo. App. 2002). This opinion addressed Colorado’s statutory provisions
for theft (Colo. Rev. Stat. § 18-4-401(1)(a)) and second-degree aggravated
motor vehicle theft (Colo. Rev. Stat. § 18-4-409(4)). 58 P.3d at 1139. 4 The
opinion held that second-degree aggravated motor vehicle theft is not a
lesser-included offense of theft, partly because the theft statute requires a
mens rea that can be satisfied in various ways, including an intent to
permanently deprive someone of the item’s use or value. Id. (citing Colo.
3
Uniform jury instructions exist for the aggravating factors involved
in motor vehicle theft and elevation of the offense to a class four felony.
Colo. Jury Instr. Crim. 4-4:19-26; Colo. Jury Instr. Crim. 4-4:27.INT. But
none of these uniform instructions require an intent to permanently deprive
someone of his or her property. Thus, when pleading guilty, Mr. Munguia-
Baeza admitted only that he had acted “knowingly,” not that he had
intended to permanently deprive someone of property. Admin. R. at 892.
4
The government overlooks Meads’s discussion of the theft statute
and cites only the statute on aggravated motor vehicle theft (Colo. Rev.
Stat. § 18-4-409).
8
Rev. Stat. § 18-4-401(1)(a)). But the court held that this element does not
exist for second-degree aggravated motor vehicle theft. Id.
This difference proves critical here because Mr. Munguia-Baeza was
not convicted under the theft statute. Instead, he was convicted of first-
degree aggravated motor vehicle theft under Colo. Rev. Stat. § 18-4-409.
Unlike the theft statute, Mr. Munguia-Baeza’s statute of conviction does
not require a specific intent to permanently deprive someone of the item’s
use or benefit. People v. Andrews, 632 P.2d 1012, 1015 n.4 (Colo. 1981);
see pp. 6-8 & n.2, above. Thus, the Board erroneously reasoned that first-
degree aggravated motor vehicle theft requires an intent to permanently
deprive someone of property. 5 This error taints the Board’s
characterization of first-degree aggravated motor vehicle theft as a crime
involving moral turpitude, requiring us to grant the petition on the issue of
removability.
III. Cancellation of Removal
We also consider the Board’s ruling that Mr. Munguia-Baeza was
ineligible for cancellation of removal. In proceedings before the Board,
Mr. Munguia-Baeza did not challenge the immigration judge’s
characterization of the second-degree burglary of a building as an
5
We express no opinion on other possible reasons to regard first-
degree aggravated motor vehicle theft as a crime involving moral
turpitude.
9
aggravated felony. Instead, he reurged the argument that the immigration
judge had already credited: that this crime is not categorically an
aggravated felony under 8 U.S.C. § 1101(a)(43)(G).
Now he pivots to a new argument, contending that second-degree
burglary of a building would not
 constitute an attempted theft offense under § 1101(a)(43)(U) or
 match the generic crime of theft.
We lack jurisdiction to consider this argument, however, because
Mr. Munguia-Baeza did not present it to the Board.
We ordinarily obtain jurisdiction only on issues that have been
exhausted in the Board’s proceedings. Molina v. Holder, 763 F.3d 1259,
1262 (10th Cir. 2014). “It is not enough to go through the procedural
motions of a [Board] appeal, or to make general statements in the notice of
appeal to the [Board], or to level broad assertions in a filing before the
[Board].” Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir.
2010) (internal quotation marks omitted). Instead, the alien must present us
with the “same specific legal theory” that he or she had presented to the
Board. Id.
Mr. Munguia-Baeza has presented us with a different legal theory
than the one presented to the Board. To the Board, Mr. Munguia-Baeza
didn’t challenge the immigration judge’s characterization of the prior
burglary as an attempted theft offense under § 1101(a)(43)(U). Instead, he
10
renewed his previous argument that Colorado’s version of second-degree
burglary of a building was overbroad by prohibiting “unlawful entry into a
‘ship, trailer, sleeping car, airplane, or other vehicle.’” Admin. R. at 53
(quoting Colo. Rev. Stat. § 18-4-101(1)).
Mr. Munguia-Baeza argues that he did not need to present his new
legal theory to the Board because it considered this theory on its own. For
this argument, he relies on Sidabutar v. Gonzales, 503 F.3d 1116 (10th Cir.
2007). There we recognized a narrow exception to the exhaustion
requirement, holding that failure to raise an issue with the Board will not
bar judicial review when the Board of Immigration Appeals addresses and
decides the issue sua sponte in a “full explanatory opinion” or with “a
discernible substantive discussion on the merits.” 503 F.3d at 1121-22. In
our view, however, the Sidabutar exception does not apply.
The Board discussed the immigration judge’s decision but observed
that Mr. Munguia-Baeza had not addressed the reason newly given for
deeming him ineligible for cancellation of removal (that the second-degree
burglary of a building qualified as an attempted theft). The Board said that
it was not persuaded to disturb the immigration judge’s decision, but the
Board did not expressly decide whether the second-degree burglary of a
building would constitute an attempted theft. As a result, the Sidabutar
exception does not apply and Mr. Munguia-Baeza’s failure to exhaust his
new argument forecloses appellate jurisdiction on cancellation of removal.
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IV. Disposition
On removability, we grant the petition and remand for further
proceedings. On cancellation of removal, we dismiss the petition for lack
of jurisdiction.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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