Caldera-Herrera v. Lynch

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

FOR THE TENTH CIRCUIT November 13, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
APOLINAR CALDERA-HERRERA,

Petitioner,

v. No. 15-9528
(Petition for Review)
LORETTA LYNCH, United States
Attorney General,

Respondent.
_________________________________

ORDER AND JUDGMENT*
_________________________________

Before KELLY, BACHARACH, and MORITZ, Circuit Judges.
_________________________________

Petitioner Apolinar Caldera-Herrera, a native and citizen of Mexico and

nonpermanent resident in the United States, 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 found Petitioner ineligible for

cancellation of removal based on his prior assault conviction – a conviction the BIA

concluded involved moral turpitude (CIMT). We exercise jurisdiction under

*
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 This order and judgment is not binding precedent,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.
8 U.S.C. § 1252(a)(2)(D)1 and grant the government’s motion for remand to permit

the BIA to assess in the first instance the impact of a new Attorney General opinion,

In re Silva Trevino, 26 I. & N. Dec. 550, 553 (Att’y Gen. 2015).

Petitioner unlawfully entered the United States in 1999. In July 2010, he

pleaded guilty in Colorado to “assault and domestic violence” in violation of

Sheridan, Colorado Code of Ordinances §§ 50-330 (assault) & 50-333 (domestic

violence). Later that month, Petitioner was charged with having entered the United

States without admission or parole in violation of 8 U.S.C. § 1182(a)(6)(A)(i). He

conceded his inadmissibility and applied for cancellation of removal under

8 U.S.C. § 1229b(b).

“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)). Assault may or

may not involve moral turpitude depending on the offender’s intent and the resulting

level of harm. See In re Solon, 24 I. & N. Dec. 239, 241 (BIA 2007) (analyzing

whether an assault conviction constituted a CIMT and discussing interplay between

intent and degree of harm caused).

Following a hearing at which counsel represented Petitioner, the IJ determined

Petitioner failed to demonstrate that his assault conviction was not a CIMT, making

1
Although the BIA decided to deny the discretionary relief of cancellation of
removal, the underlying issue is a legal one: whether Petitioner met his burden to
prove his conviction wasn’t a CIMT. While we generally lack jurisdiction over
denials of discretionary relief, see 8 U.S.C. § 1252(a)(2)(B), we have jurisdiction
over the legal question presented, see id. § 1252(a)(2)(D).
2
him ineligible for cancellation of removal. See 8 U.S.C. §§ 1182(a)(2)(A);

1229b(b)(1)(c). In so finding, the IJ first rejected Petitioner’s argument that his

conviction categorically was not a CIMT based on the statutory definition of

§ 50-330. The assault provision states that “[i]t is unlawful for any person to

knowingly, recklessly or with criminal negligence cause bodily injury to another

person; provided that this section shall not apply to injury caused by means of a

deadly weapon, nor shall it apply in the event of serious bodily injury.” Section

50-333 defines domestic violence to include assault.

The IJ found § 50-330 to be divisible because it set out elements in the

alternative, criminalizing both conduct that could be a CIMT and conduct that

couldn’t. United States v. Rodriguez, 768 F.3d 1270, 1273 (10th Cir. 2014)

(describing the test for determining if a statute is divisible). Based on

In re Silva-Trevino, 24 I. & N. Dec. 687 (Att’y Gen. 2008),2 the IJ then applied a

modified categorical approach, reviewing both the judicially noticeable record of

conviction and additional information outside the conviction record. Under this

analysis, the IJ found the evidence inconclusive as to the degree of intent involved in

Petitioner’s offense. Thus, the IJ concluded Petitioner failed to prove his assault

2
In this 2008 decision, the Attorney General adopted a three-step approach for
determining whether a crime involves moral turpitude. Silva-Trevino,
24 I. & N. Dec. at 688-89. Under that approach, agency adjudicators first conduct a
categorical inquiry. If this first step doesn’t resolve the issue, adjudicators then apply
a “modified categorical” inquiry, evaluating whether the noncitizen’s record of
conviction evidences a crime of moral turpitude. Id. at 696-98. If this second step
fails to resolve the issue, adjudicators then “consider any additional evidence the
adjudicator determines is necessary or appropriate” to resolve the CIMT issue. Id. at
704.
3
conviction was not a CIMT and consequently failed to meet his burden to prove his

eligibility for cancellation of removal relief. See 8 U.S.C. § 1229a(c)(4)(A)

(providing that a noncitizen “applying for relief or protection from removal has the

burden of proof to establish that [he] . . . satisfies the applicable eligibility

requirements”). The IJ further noted that because Petitioner could have been

sentenced to a year in prison for his assault conviction, he was potentially removable

under 8 U.S.C. § 1227(a)(2), which would also render him ineligible for cancellation

of removal.

The three-member BIA panel affirmed, holding the IJ properly found that

although § 50-330 was not categorically a CIMT, it was divisible. Like the IJ, the

BIA also analyzed the assault statute under Silva Trevino’s modified categorical

approach and concluded Petitioner failed to present evidence showing the degree of

harm involved in his assault conviction. Thus, the BIA held Petitioner failed to show

his eligibility for cancellation of removal relief and it dismissed Petitioner’s appeal.

Petitioner seeks review of the BIA’s decision, arguing the § 50-330 assault

conviction is categorically not a CIMT. He argues that § 50-330 can’t apply to

serious bodily injury or injury caused by a deadly weapon; thus, he reasons the level

of harm required for a conviction under § 50-330 is insufficient to constitute a CIMT.

He further argues § 50-330 is divisible only as to intent, but not as to harm, and

therefore the BIA erred in finding the statute divisible. Thus, he contends the BIA

inappropriately applied a modified categorical analysis.

4
The government seeks remand for further proceedings in light of the Attorney

General’s 2015 decision vacating its 2008 decision in Silva-Trevino. See In re

Silva-Trevino, 26 I. & N. Dec. at 553.3 The government points out that both the IJ

and the BIA relied on the 2008 decision in analyzing Petitioner’s offense of

conviction and in concluding he failed to meet his burden to establish eligibility for

relief. Petitioner objects to remand, arguing he has already returned to Mexico and

suggesting that a remand will only delay resolution of his case.

Given the Attorney General’s decision vacating adoption of the approach

relied upon by the agency to reject Petitioner’s arguments in this case, we conclude

remand is appropriate to permit the BIA to assess in the first instance the impact of

the new decision in this case. Therefore, we grant the government’s motion to

remand and dismiss the petition for review.

Entered for the Court

Nancy L. Moritz
Circuit Judge

3
The Attorney General’s decision vacating Silva-Trevino came after five
Circuit courts rejected its construction of the CIMT statute in determining whether a
crime involves moral turpitude, at least as to the third step of the analysis directing
the agency to consider information outside the record of conviction. Id. at 552-53.