Petition for Review from the Board of Immigration Appeals
S. Lamb (Catherine A. Chan, on the briefs), Chan Law Firm,
Denver, Colorado, for Petitioner.
Jessica A. Dawgert, Senior Litigation Counsel (Chad A.
Readler, Acting Assistant Attorney General, and Melissa
Neiman-Kelting, Assistant Director, with her on the brief),
U.S. Department of Justice, Office of Immigration Litigation,
Washington, D.C., for Respondent.
BRISCOE, LUCERO, and BACHARACH, Circuit Judges.
LUCERO, Circuit Judge.
Lujan Jimenez petitions for review from a final order of
removal and an order by the Bureau of Immigration Appeals
("BIA") declining to sua sponte reopen removal
proceedings. We dismiss the latter petition for lack of
jurisdiction. Exercising jurisdiction under 8 U.S.C. §
1252(a), we grant the former.
incorrectly determined that Lujan's Colorado
conviction for first degree criminal trespass, Colo. Rev.
Stat. § 18-4-502, was a crime involving moral turpitude.
Under the portion of the statute at issue, a defendant must
have unlawfully entered a "motor vehicle with intent to
commit a crime therein." Id. The BIA held that
the crime intended is an element of the offense such that the
statute is divisible on this basis. However, the Colorado
Supreme Court has held an information charging only that a
defendant intended to commit "a crime" contains
"all essential elements of the crime of first degree
criminal trespass." People v. Williams, 984
P.2d 56, 63 (Colo. 1999). And in numerous Colorado cases
involving similar crimes, juries have been instructed as to
alternative ulterior offenses. We conclude that the Colorado
statute is not divisible as to the particular ulterior
offense. A prior decision of this court stating otherwise,
United States v. Venzor-Granillo, 668 F.3d 1224
(10th Cir. 2012), cannot be reconciled with the approach to
divisibility set forth in Mathis v. United States,
136 S.Ct. 2243, 2249 (2016).
is a native and citizen of Mexico. He first entered the
United States as a child sometime in the 1990s. His most
recent entry into the United States occurred in May 2004. In
January 2007, Lujan pled guilty in Colorado state court to
Criminal Trespass of a Motor Vehicle with the Intent to
Commit a Crime Therein, in violation of Colo. Rev. Stat.
§ 18-4-502. He was sentenced to thirty-five days in
12, 2008, the Department of Homeland Security issued Lujan a
Notice to Appear. It later filed an amended notice charging
that he was removable under 8 U.S.C. § 1182(a)(6)(A)(i)
as an alien present in the United States without being
admitted or paroled. Lujan appeared in immigration court in
September 2008 and received a continuance to hire an
attorney. After retaining counsel, he obtained two additional
continuances in November 2008 and February 2009. In April
2009, he conceded removability.
then applied for adjustment of status and cancellation of
removal. He obtained four additional continuances of his
removal proceedings. In August 2011, Lujan submitted
documents in support of his applications for relief. His case
was set for a final merits hearing in January 2014. However,
on May 6, 2013, an Immigration Judge ("IJ")
rescheduled the hearing for June 5, 2013. Lujan requested a
continuance on May 13, which was denied. His counsel moved to
withdraw on May 24.
appeared in immigration court on June 5, 2013, and the IJ
granted counsel's motion to withdraw. Lujan stated that
he was attempting to obtain new counsel, but proceeded pro se
at the hearing. The IJ denied relief, concluding that Lujan
was ineligible for adjustment of status based on his
immigration history and that he was ineligible for
cancellation of removal because he had been convicted of a
crime involving moral turpitude—his criminal trespass
offense in Colorado.
appealed to the BIA, arguing that the IJ's denial of a
continuance violated his right to due process and that his
Colorado conviction was not a crime involving moral
turpitude. The BIA affirmed the IJ's ruling. Lujan then
filed an untimely petition for review, which we dismissed.
Lujan-Jimenez v. Holder, No. 14-9608 (10th Cir. Jan.
30, 2015) (unpublished). He also filed a motion requesting
that the BIA reopen his removal proceedings or reissue its
removal order, which the BIA denied. We granted his petition
for review of that order, remanding to the BIA to explain its
reasons for declining to reissue the removal order.
Lujan-Jimenez v. Lynch, 643 Fed.Appx. 737, 738 (10th
Cir. 2016) (unpublished).
remand, the BIA reissued Lujan's removal order. Lujan
filed a petition for review of the reissued order. Several
months later, he filed a request that the BIA sua sponte
reopen his proceedings. The BIA declined to do so, and Lujan
filed a second petition for review. We consolidated the two
first consider our jurisdiction over Lujan's petitions
for review. See Margheim v. Buljko, 855 F.3d 1077,
1083 (10th Cir. 2017) ("As a federal court of limited
jurisdiction, we have an independent obligation to confirm
that our jurisdiction is proper."). In petition number
16-9555, Lujan seeks review of the BIA's final order of
removal. We possess jurisdiction to review final orders of
removal under 8 U.S.C. § 1252(a)(1). Lujan's
petition was timely filed within thirty days of entry of the
order. See § 1252(b)(1); Stone v. INS,
514 U.S. 386, 405 (1995) (petition for review deadline is
jurisdictional). And Lujan seeks review of statutory and
constitutional questions rather than discretionary issues or
other matters over which jurisdiction is barred by §
we lack jurisdiction over petition number 17-9527. In that
petition, Lujan seeks review of the BIA's decision
declining to sua sponte reopen his removal proceedings. Our
court has previously held that "we do not have
jurisdiction to consider [a] petitioner's claim that the
BIA should have sua sponte reopened the proceedings . . .
because there are no standards by which to judge the
agency's exercise of discretion." Infanzon v.
Ashcroft, 386 F.3d 1359, 1361 (10th Cir. 2004). We
accordingly review the merits only as to petition number
review the ruling of the BIA as the agency's final
decision. Cruz-Funez v. Gonzales, 406 F.3d 1187,
1190 (10th Cir. 2005). However, "[w]e may consult the
IJ's decision to give substance to the BIA's
reasoning." Razkane v. Holder, 562 F.3d 1283,
1287 (10th Cir. 2009). In doing so, we review legal issues de
novo and factual ...