FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT September 11, 2020 _________________________________ Christopher M. Wolpert Clerk of Court SANTOS GAMBOA CHAVIRA, a/k/a Santos Gamboa, Petitioner, v. No. 19-9556 (Petition for Review) WILLIAM P. BARR, United States Attorney General, Respondent. _________________________________ ORDER AND JUDGMENT* _________________________________ Before BRISCOE, MATHESON, and EID, Circuit Judges. _________________________________ Santos Gamboa Chavira petitions for review of a decision by the Board of Immigration Appeals (“BIA”) that his Utah convictions for theft by receiving stolen property qualify as “aggravated felonies” under the Immigration and Nationality Act (“INA”). Exercising jurisdiction under 8 U.S.C. § 1252(a)(1) and (a)(2)(D), we deny the petition for review. * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. BACKGROUND I. Legal Background An alien who commits an “aggravated felony” is removable under the INA. 8 U.S.C. § 1227(a)(2)(A)(iii). “When the Government alleges that a state conviction qualifies as an ‘aggravated felony’ under the INA, we generally employ a ‘categorical approach’ to determine whether the state offense is comparable to an offense listed in the INA.” Moncrieffe v. Holder, 569 U.S. 184, 190 (2013). “Under this approach we look . . . to whether the state statute defining the crime of conviction categorically fits within the generic federal definition of a corresponding aggravated felony.” Id. (internal quotation marks omitted). “[A] state offense is a categorical match with a generic federal offense only if a conviction of the state offense necessarily involved facts equating to the generic federal offense.” Id. (alterations and internal quotation marks omitted). “[W]e must presume that the conviction rested on nothing more than the least of the acts criminalized, and then determine whether even those acts are encompassed by the generic federal offense.” Id. at 190-91 (brackets and internal quotation marks omitted). But the focus on minimum conduct “requires more than the application of legal imagination to a state statute’s language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). Thus, although the facts of a particular case generally are irrelevant to a categorical analysis, see Moncrieffe, 569 U.S. at 190, to meet the ”realistic 2 probability” standard, a petitioner “must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues,” Duenas-Alvarez, 549 U.S. at 193. II. Factual and ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals