FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 5, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
SALVADOR PORTILLO PEREZ, a/k/a
Salvador Portillo,
Petitioner,
v. No. 15-9537
(Petition for Review)
LORETTA LYNCH, United States
Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before KELLY, BACHARACH, and MORITZ, Circuit Judges.
_________________________________
Salvador Portillo Perez, a native and citizen of Mexico, seeks review of the
decision of the Board of Immigration Appeals (BIA) upholding an immigration
judge’s (IJ) order denying his application for cancellation of removal. The BIA
determined that Mr. Portillo1 was ineligible for cancellation of removal because he
had been convicted of a crime involving moral turpitude (CIMT), pursuant to
*
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 This order and judgment is not binding precedent,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.
1
In his brief, petitioner refers to himself as Mr. Portillo.
8 U.S.C. § 1227(a)(2)(A)(i), and, therefore, he did not meet the criteria for
cancellation of removal under 8 U.S.C. § 1229b(b)(1)(C). We exercise jurisdiction
under 8 U.S.C. § 1252(a)(1) and deny the petition for review.2
I. BACKGROUND
Mr. Portillo illegally entered the United States in 1993. In 2002, he was
convicted of soliciting prostitution in violation of Denver Municipal Code
§ 38-158(A)(1),3 and prostitution in violation of Denver Municipal Code
§ 38-158(A)(7).4 In 2010, the Department of Homeland Security commenced
removal proceedings on the ground that Mr. Portillo was an alien present in the
United States without being admitted or paroled. He conceded removability and
applied for cancellation of removal, arguing that removal would create exceptional
and extremely unusual hardship for his United States citizen children. Following a
hearing at which he was represented by counsel, the IJ determined that Mr. Portillo’s
convictions were CIMTs, so he was ineligible for cancellation of removal. The IJ
2
Although the BIA’s decision was to deny the discretionary relief of
cancellation of removal, the underlying issue is a legal one: whether Mr. Portillo met
his burden of proving that his conviction was not a CIMT. Therefore, while this
court generally lacks jurisdiction over denials of discretionary relief, see 8 U.S.C.
§ 1252(a)(2)(B), we do have jurisdiction over the legal question presented, see id.
§ 1252(a)(2)(D).
3
Section 38–158(A)(1) provides that “[i]t shall be unlawful for any person . . .
[t]o solicit another person for the purpose of prostitution.” Prostitution is defined as
“any act of sexual intercourse including but not limited to fellatio, cunnilingus,
masturbation, or anal intercourse, with any person not his/her spouse in exchange for
money or other thing of value.” Id. § 38-156(8).
4
Section 38-158(A)(7) provides that “[i]t shall be unlawful for any person . . .
[t]o perform, offer or agree to any act of prostitution.”
2
therefore denied the application, but granted Mr. Portillo’s request for voluntary
departure. On appeal to the BIA, the BIA held that Mr. Portillo did not meet his
burden to show he was eligible for the relief of cancellation of removal, and
dismissed the appeal.
Mr. Portillo now seeks review in this court, asserting that the BIA erred in
finding his crimes were CIMTs because not all prostitution-related offenses
necessarily involve morally turpitudinous conduct. He also argues that because
prostitution is a victimless crime, not all prohibited conduct meets the CIMT criteria
of maliciousness, an identifiable victim, actual harm, or intent to cause harm.
II. DISCUSSION
To be eligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1),
Mr. Portillo had the burden to show that (1) he had been present in the United States
for ten years; (2) his moral character had been good for ten years; (3) he had not been
convicted of certain crimes, including CIMTs; and (4) his removal would result in
exceptional and extremely unusual hardship to a qualifying relative. See 8 U.S.C.
§ 1229a(c)(4) (placing burden of proof on alien to establish eligibility); Mena-Flores
v. Holder, 776 F.3d 1152, 1161 (10th Cir. 2015) (holding alien bears the burden of
proving his eligibility for discretionary relief from removal). “An alien convicted of
a CIMT is considered inadmissible and is therefore not eligible for cancellation of
removal . . . .” Garcia v. Holder, 584 F.3d 1288, 1289 (10th Cir. 2009) (citing
8 U.S.C. §§ 1182(a)(2)(A); 1229b(b)(1)(c)). Because the BIA found that Mr. Portillo
3
was ineligible for the discretionary relief he sought due to his inability to show that
he had not been convicted of a CIMT, it did not address the other criteria.
The BIA issued a single-member decision affirming the IJ’s order. “Thus,
although we will not affirm on grounds raised in the IJ decision unless they are relied
upon by the BIA, we are not precluded from consulting the IJ’s more complete
explanation of those same grounds.” Maatougui v. Holder, 738 F.3d 1230, 1237 n.2
(10th Cir. 2013) (brackets, ellipsis, and internal quotation marks omitted). We
review de novo whether a state conviction constitutes a CIMT. Rodriguez-Heredia v.
Holder, 639 F.3d 1264, 1267 (10th Cir. 2011). Therefore, we review de novo the
BIA’s legal determination that Mr. Portillo’s convictions under Denver Municipal
Code §§ 38-158(A)(1)&(7) qualified as CIMTs.
“To determine whether a state conviction is a [CIMT], we ordinarily employ
the categorical approach.” Rodriguez-Heredia, 639 F.3d at 1267. 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 duties owed between man and man, either one’s fellow
man or society in general.” Id. (internal quotation marks omitted). To involve moral
turpitude, an offense “must require a reprehensible or despicable act,” that is, one
“that is inherently wrong, or malum in se, rather than conduct deemed wrong only
because of a statutory proscription, malum prohibitum.” Id. A CIMT “necessarily
4
involves an evil intent or maliciousness in carrying out the reprehensible act.” Id. at
921-22.
As a panel of this court recently recognized, “[t]he BIA has long viewed
prostitution-related crimes as morally turpitudinous.” Florentino-Francisco v.
Lynch, 611 F. App’x 936, 938 (10th Cir. 2015) (collecting cases). There, the panel
quoted with approval the holding of Rohit v. Holder, 670 F.3d 1085, 1089 (9th Cir.
2012), that “[s]oliciting an act of prostitution is not significantly less base, vile, and
depraved than engaging in an act of prostitution.” (internal quotation marks omitted).
Mr. Portillo attempts to distinguish Rohit because there, the relevant section of
the California Penal Code prohibiting solicitation of prostitution required an act in
addition to an agreement. See Rohit, 670 F.3d at 1089. He asserts that in contrast to
the California statute, the relevant sections of the Denver Municipal Code do not
require an act in addition to an agreement. But neither Rohit nor
Florentino-Francisco relied on the requirement of an overt act, stating instead: “‘A
person who solicits an act of prostitution does not become appreciably more morally
turpitudinous when the other party accepts or the two engage in the act.’”
Florentino-Francisco, 611 F. App’x at 938 (quoting Rohit, 670 F.3d at 1089-90).
Mr. Portillo also alleges that the BIA took the position that all
prostitution-related offenses are CIMTs and thus failed to identify and clarify what
acts of prostitution are not CIMTs. He points out that the Denver Municipal Code’s
definition of prostitution includes sexual acts other than intercourse. See Denver
Mun. Code § 38-156(8) (including in definition of prostitution “fellatio, cunnilingus,
5
masturbation, or anal intercourse”). He argues that if engaging in sexual intercourse
for hire is a CIMT, “then it stands to reason that a simple prostitution offense that is
defined to include acts outside of sexual intercourse may not be classified as a
[CIMT].” Aplt. Opening Br. at 16. We disagree that the BIA’s decision
encompassed all prostitution-related offenses; the BIA addressed only the offenses
for which Mr. Portillo was convicted.5 More to the point, Mr. Portillo has cited no
authority for his argument that prostitution offenses not involving sexual intercourse
are not CIMTs, and has failed to carry his burden of proving that his convictions
were not CIMTs.
Finally, Mr. Portillo contends that because prostitution is a victimless crime,
not all prohibited conduct meets the CIMT criteria of maliciousness, an identifiable
victim, actual harm, or intent to cause harm. But as noted above, the BIA has long
held that prostitution is a CIMT, a premise we must accept because it arises from the
BIA’s reasonable construction of the statutory term “moral turpitude.”
See Padilla-Caldera v. Holder, 637 F.3d 1140, 1147 (10th Cir. 2011) (“[I]f the
implementing agency’s construction is reasonable, Chevron[, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984),] requires a federal court to
accept the agency’s construction of the statute, even if the agency’s reading differs
from what the court believes is the best statutory interpretation.” (internal quotation
5
Although the BIA erroneously referred the Colorado Revised Statutes rather
than the Denver Municipal Code, it is clear that the BIA was referring to the Denver
Municipal Code. See R. at 3 (BIA order citing Colorado Revised Statute
§§ 38-158(A)(1)&(7); 117 (Denver Mun. Code §§ 38-158(A)(1)&(7)).
6
marks omitted)); Rohit, 670 F.3d at 1090 (applying Chevron deference to the BIA’s
long-held view that prostitution is a CIMT).
Moreover, although the BIA has recognized that “it has been many years since
the [BIA] has addressed, in a precedent decision, the issue of whether an offense
involving prostitution represents a [CIMT],” the BIA has nevertheless concluded
“that such an offense is still regarded as inherently base, vile, or depraved, and
contrary to the accepted rules of morality and the duties owed between persons and,
in particular, to society in general.” Matter of Sehmi, 2014 WL 4407689, at * 7
(BIA 2014 (unpublished)).6 “Prostitution, and derivatively solicitation of
prostitution, are thus inherently wrong. . . .” Florentino-Francisco, 611 F. App’x at
939. Accordingly, we conclude that the BIA did not err in determining that
Mr. Portillo’s convictions were CIMTs and he was therefore ineligible for the relief
of cancellation of removal.
III. CONCLUSION
The petition for review is denied.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
6
As an unpublished decision, Matter of Sehmi is “not precedential within the
agency.” Efagene v. Holder, 642 F.3d 918, 920 (10th Cir. 2011). Therefore, we do
not accord it Chevron deference, see id., but cite it for its “power to persuade,”
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (stating that an agency’s statutory
interpretation is “entitled to respect” if it has the “power to persuade”).
7