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Morones-Quinones v. Holder

United States Court of Appeals, Tenth Circuit

November 25, 2014

LUZ DEL CARMEN MORONES-QUINONES, Petitioner,
v.
ERIC H. HOLDER, JR., United States Attorney General, Respondent.

Petition for Review

Before HOLMES, BACHARACH, and McHUGH, Circuit Judges.

ORDER AND JUDGMENT [*]

CAROLYN B. MCHUGH CIRCUIT JUDGE

An immigration judge determined that Luz Del Carmen Morones-Quinones is ineligible for cancellation of removal because she has been convicted of a crime involving moral turpitude. The Board of Immigration Appeals agreed and dismissed her appeal. Exercising jurisdiction under 8 U.S.C. § 1252(a), we deny Ms. Morones-Quinones's petition for review because her conviction under the Colorado criminal impersonation statute, Colo. Rev. Stat. § 18-5-113(1)(e) (2010), is categorically a crime involving moral turpitude.

I. Background

Ms. Morones-Quinones is a native and citizen of Mexico who entered the United States without inspection in December 1996. The Department of Homeland Security issued her a Notice to Appear in March 2011, charging her as removable because she is an alien present in the United States without having been admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). Ms. Morones-Quinones conceded removability, but applied for cancellation of removal under 8 U.S.C. § 1229b(b). An immigration judge ("IJ") concluded she was ineligible for that relief. The IJ noted that an applicant for cancellation of removal must prove (among other things) that she has not been convicted of certain types of offenses, including a crime involving moral turpitude ("CIMT"). See id. § 1229b(b)(1)(C) (citing 8 U.S.C. § 1182(a)(2), which references CIMTs). The IJ concluded that Ms. Morones-Quinones's conviction under the Colorado criminal impersonation statute qualifies categorically as a CIMT. That statute provides, in pertinent part:

(1) A person commits criminal impersonation if he knowingly assumes a false or fictitious identity or capacity and in such identity or capacity he:
. . . .
(e) Does any other act with intent to unlawfully gain a benefit for himself or another or to injure or defraud another.

Colo. Rev. Stat. § 18-5-113(1)(e) (2010).[1] The IJ held, alternatively, that if a conviction under that section was not categorically a CIMT, the IJ was unable to perform a modified categorical analysis based on the limited documentation that Ms. Morones-Quinones had provided regarding her conviction. The IJ denied her application for cancellation of removal and ordered her removed to Mexico.

Ms. Morones-Quinones appealed the IJ's decision to the Board of Immigration Appeals ("BIA"). The BIA held that all offenses under § 18-5-113(1)(e) inherently involve fraud and are therefore categorically CIMTs. It noted that Ms. Morones-Quinones did not dispute "that when a person knowingly assumes a false identity and does an act with either (1) an intent to injure or (2) an intent to defraud, such an offense involves moral turpitude." Admin. R. at 4. The BIA therefore considered whether the third basis for a conviction under § 18-5-113(1)(e) also involves moral turpitude, specifically: "knowingly assum[ing] a false or fictitious identity or capacity, and in such identity or capacity . . . [doing] any other act with intent to unlawfully gain a benefit for himself or another." It concluded this language also inherently involves fraud because "[t]he person who commits this offense misrepresents [her] identity to obtain a benefit" and "[t]he individual or entity that distributes the benefit is deceived." Admin. R. at 5. The BIA also made an alternative finding that, under a modified categorical analysis, Ms. Morones-Quinones had not satisfied her burden to prove she had been convicted under a divisible portion of § 18-5-113(1)(e) that does not involve moral turpitude. The BIA therefore dismissed Ms. Morones-Quinones's appeal. She filed a timely petition for review.

II. Scope and Standard of Review

Because a single member of the BIA entered a brief order dismissing Ms. Morones-Quinones's appeal pursuant to 8 C.F.R. § 1003.1(e)(5), we review the BIA's decision as the final order of removal. See Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006). We ordinarily lack jurisdiction to review orders regarding the granting of relief under § 1229b. See 8 U.S.C. § 1252(a)(2)(B)(i). But we have jurisdiction to review Ms. Morones-Quinones's contention that the BIA erred in concluding that she has been convicted of a CIMT because it raises a "question[] of law." Id. § 1252(a)(2)(D); see also Diallo v. Gonzales, 447 F.3d 1274, 1282 (10th Cir. 2006) (holding "question of law" refers to "a narrow category of issues regarding statutory construction" (internal quotation marks omitted)). "In ...


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