Beltran-Rubio v. Holder

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 30, 2014

Elisabeth A. Shumaker
Clerk of Court
RUBEN BELTRAN-RUBIO,

Petitioner,

v. No. 13-9565
(Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,

Respondent.

ORDER AND JUDGMENT*

Before PHILLIPS, PORFILIO, and BALDOCK, Circuit Judges.

Ruben Beltran-Rubio, a native and citizen of Mexico, challenges the Board of

Immigration Appeals’ (BIA’s) decision upholding the denial of his application for

cancellation of removal and ordering him to depart the United States. As explained

below, we conclude that Beltran-Rubio’s application was properly denied and that he

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
is deportable because he committed a crime involving moral turpitude (CIMT).

Thus, we deny his petition for review.

BACKGROUND

Beltran-Rubio entered the United States without inspection in 1994. Twelve

years later, he was convicted in Colorado state court of criminal impersonation to

gain a benefit, Colo. Rev. Stat. § 18-5-113(1)(e) (2006), a felony carrying a one-year

minimum prison sentence. The Department of Homeland Security (DHS) initiated

removal proceedings on the grounds that Beltran-Rubio had entered the country

illegally and had committed a crime involving moral turpitude. In response,

Beltran-Rubio applied for cancellation of removal.1 DHS filed a motion to pretermit

Beltran-Rubio’s application, arguing that he was ineligible for cancellation of

removal because his Colorado conviction was a CIMT.

An Immigration Judge (IJ) found Beltran-Rubio removable as charged, granted

DHS’s motion, denied Beltran-Rubio’s application, and ordered him to depart the

country within two months. Beltran-Rubio appealed. The BIA dismissed his appeal,

concluding that Colorado’s criminal-impersonation statute establishes a CIMT

because the statute inherently “requires fraud in knowingly using a falsehood, with

the attempt to obtain a benefit.” R. at 4.

1
An alien may be eligible for cancellation of removal if he meets certain
requirements, including that he has not been convicted of a CIMT. See 8 U.S.C.
§ 1229b(b)(1)(C).

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 DISCUSSION

“In our review of the agency’s decision, we decide purely legal questions

de novo.” Karki v. Holder, 715 F.3d 792, 800 (10th Cir. 2013) (internal quotation

marks omitted). Thus, we review de novo the BIA’s legal determination that

Beltran-Rubio’s conviction under § 18–5–113(1)(e) qualifies as a CIMT.2

“To determine whether a state conviction is a [CIMT], we ordinarily employ

the categorical approach.” Rodriguez-Heredia v. Holder, 639 F.3d 1264, 1267

(10th Cir. 2011). Under that approach, “this court looks only to the statutory

definition of the offense and not to the underlying facts of the conviction to

determine whether the offense involves moral turpitude.” Efagene v. Holder,

642 F.3d 918, 921 (10th Cir. 2011). “Moral turpitude refers to conduct which is

inherently base, vile, or depraved, contrary to the accepted rules of morality and

2
Because a single member of the BIA entered a brief affirmance order under
8 C.F.R. § 1003.1(e)(5), we review the BIA’s decision as the final order of removal,
but “we may consult the IJ’s opinion to the extent that the BIA relied upon or
incorporated it.” Sarr v. Gonzales, 474 F.3d 783, 790 (10th Cir. 2007).
To the extent the government urges that we defer under Chevron, U.S.A., Inc.
v. Nat. Res. Defense Council, Inc., 467 U.S. 837 (1984), to the BIA’s view
of § 18-5-113(1)(e) as a CIMT, we decline. Chevron deference does not apply,
where, as here, the BIA’s decision is unpublished and does not rely on “prior BIA
precedent addressing the same question.” Efagene v. Holder, 642 F.3d 918, 920
(10th Cir. 2011). Moreover, “the BIA is owed no deference to its interpretation of
the substance of the state-law offense at issue, as Congress has not charged it with
the task of interpreting a state criminal code.” Id. at 921. But insofar as the BIA’s
decision has “the power to persuade,” it is “entitled to respect.” Christensen v.
Harris County, 529 U.S. 576, 587 (2000) (internal quotation marks omitted)
(discussing the sliding-scale model of deference established in Skidmore v. Swift &
Co., 323 U.S. 134, 140 (1944)).

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duties owed between man and man, either one’s fellow man or society in general.”

Id. at 921 (internal quotation marks omitted).

Section 18-5-113 resides in the Colorado criminal code as one of many

“Offenses Involving Fraud.” See Colo. Rev. Stat., Title 18, Article V. The Colorado

Court of Appeals describes “the criminal impersonation statute [a]s one provision of

the Criminal Code invoking a portion of the state’s police power to criminalize

certain types of fraudulent impersonation.” People v. Van De Weghe, 312 P.3d 231,

235 (Colo. Ct. App. 2012) (emphasis added).

The statute provides: “(1) A person commits criminal impersonation if he

knowingly assumes a false or fictitious identity or capacity, and in such capacity he

. . . (e) [d]oes any . . . act [not specified in subclauses (a) through (d)] 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). Beltran-Rubio contends that the statute is not

categorically a CIMT because “it prohibits conduct that is both morally turpitudinous

and conduct that is not.” Aplt. Opening Br. at 7. He acknowledges that this court

recognizes a crime as a CIMT if, for instance, it has “fraud [ ]as an ingredient.”

Rodriguez-Heredia, 639 F.3d at 1268 (internal quotation marks omitted). He then

points out that fraud is mentioned in subclause (e) as only one of three possible

intended goals: (1) intent to benefit; (2) intent to injure; or (3) intent to “defraud.”

Thus, Beltran-Rubio contends, a person could commit an act with the intent to benefit

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and, despite violating the statute, would not have committed a CIMT because there is

no fraud.

We disagree with Beltran-Rubio’s interpretation of the statute, as he ignores

the statute’s introductory clause. That clause requires the “knowing[ ] assum[ption

of] a false or fictitious identity or capacity,” Colo. Rev. Stat. § 18-5-113(1)—or,

stated succinctly, deceit. And when that deceit is used with any of the intended goals

in subclause (e)—whether to benefit, injure, or defraud—there is fraud, as that term

is commonly understood. See Black’s Law Dictionary 731 (9th ed. 2009) (defining

fraud as “[a] knowing misrepresentation of the truth or concealment of a material fact

to induce another to act to his or her detriment”); cf., e.g., Lagunas-Salgado v.

Holder, 584 F.3d 707, 712 (7th Cir. 2009) (holding “that knowingly selling false

official identification documents involves inherently deceptive conduct and is,

therefore, a crime involving moral turpitude”). Thus, by knowingly assuming a fake

identity or capacity, a person can be guilty of a CIMT under § 18-5-113(1)(e) even if

he or she employs that deceit with only the intent to benefit or injure.

Beltran-Rubio asserts that “[i]f intent to defraud could truly be read into the

entire statute, the legislature had no reason to include ‘intent to defraud’ as a possible

element of the crime separate from ‘intent to gain a benefit.’” Aplt. Opening Br. at

18. We disagree. The fact that fraud can be implied from the statute’s introductory

clause for the purpose of assessing morally turpitudinous conduct does not mean that

there are duplicative fraud intents. Specifically, the Colorado Supreme Court has

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stated that the statute has two distinctly different mental states: (1) the “knowing

utilization of a false or fictitious identity or capacity”; and (2) “the intent to

unlawfully gain a benefit for one’s self or another, or to injure or defraud another.”

Alvarado v. People, 132 P.3d 1205, 1208 (Colo. 2006). While the first mental state,

in conjunction with using a fake identity or capacity to accomplish one of three

intended goals, supplies the fraud that renders the statute’s violation a CIMT, there

are still two separate mental states - knowing and intentional.

Beltran-Rubio also contends that viewing § 18-5-113(1)(e)’s introductory

clause as supplying a fraud requirement would mean that fraud inheres in “any

crime . . . in which a falsehood is used to gain a benefit without regard to the

materiality of the fact, the knowledge or lack of knowledge on the part of the other

party, the intent that someone act on the misrepresentation, malevolence of intent or,

of considerable importance here, damages.” Aplt. Opening Br. at 15. But he cites no

authority showing that the perceived shortcomings in the statute are relevant to

whether a crime actually involves moral turpitude. See Rodriguez-Heredia, 639 F.3d

at 1268-69 (stating that the absence in Utah’s identity-theft statute of a requirement

that the fraudster procure something of value “appears irrelevant to whether fraud

crimes are crimes of moral turpitude”). Moreover, as the BIA has explained, “where

fraud is inherent in an offense, it is not necessary that the statute prohibiting it

include the usual phraseology concerning fraud in order for it to involve moral

turpitude.” Matter of Flores, 17 I. & N. Dec. 225, 228 (1980).

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 Finally, Beltran-Rubio argues that Colorado’s criminal impersonation statute

has been used to convict individuals for conduct that does not qualify as a CIMT.

For instance, he cites People v. Bauer, 80 P.3d 896 (Colo. Ct. App. 2003), which

upheld a conviction under § 18-5-113(1)(e) for an attorney practicing law with a

suspended license. Beltran-Rubio contends that but for the “regulatory scheme for

licensing lawyers, [Bauer] would have done nothing wrong.” Aplt. Reply Br. at 8.

As the Colorado Court of Appeals observed, however, Bauer deceived clients and

unlawfully obtained money from them. Bauer, 80 P.3d at 898. Beltran-Rubio

provides no convincing argument that such conduct is not morally turpitudinous.

Beltran-Rubio also cites cases upholding impersonation convictions for giving

a false name to police in order to avoid arrest. See, e.g., People v. Borrego, 738 P.2d

59 (Colo. Ct. App. 1987). He asserts that such conduct cannot be a CIMT because

the defendants “are people who suffer from high anxiety or . . . fail to think things

through quickly,” Aplt. Reply Br. at 9, and are only playing a “game of cat-and-

mouse” with the police, Aplt. Opening Br. at 20. To support his assertion, he cites

an unpublished decision by this court holding that a violation of Utah’s obstruction-

of-justice statute is not a CIMT. See Vaquero-Cordero v. Holder, 498 F. App’x 760,

762 (10th Cir. 2012) (defendant pleaded guilty to obstructing justice by “applying

force to his front door to keep it closed while officers attempted to enter”). But

Vaquero-Cordero is not at all helpful to Beltran-Rubio, as that case did not involve

Colorado’s impersonation statute and even observed that Vaquero-Cordero’s

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obstruction of justice was not similar to crimes involving dishonesty or a false

statement, which are CIMTs. See id. at 765 (citing Padilla v. Gonzales, 397 F.3d

1016, 1019 (7th Cir. 2005) (holding that “knowingly furnishing false information”

to police to prevent apprehension is a CIMT)).

Beltran-Rubio’s attempts to undermine the categorical nature of criminal

impersonation as a CIMT are without merit.

CONCLUSION

The fraud that renders § 18-5-113(1)(e) a CIMT is inherent in knowingly

assuming a fake identity or capacity to achieve an intended goal. We conclude,

therefore, that there is no “realistic probability . . . that [Colorado] would apply its

statute to conduct that” is not morally turpitudinous, Rodriguez-Heredia, 639 F.3d

at 1267. Accordingly, we deny Beltran-Rubio’s petition for review.

Entered for the Court

Bobby R. Baldock
Circuit Judge

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