FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS November 25, 2019 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court MIGUEL ANGEL GARCIA- MORALES, Petitioner, v. No. 17-9559 WILLIAM P. BARR,* United States Attorney General, Respondent. ORDER AND JUDGMENT ** Before TYMKOVICH, Chief Judge, HOLMES and PHILLIPS, Circuit Judges. Miguel Garcia-Morales petitions for review from an order of the Bureau of Immigration Appeals (“BIA”) affirming and adopting a decision by an immigration judge (“IJ”) to pretermit his application for cancellation of removal under section 240A(b) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1229b(b). * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), the current Attorney General, William P. Barr, is automatically substituted for Jefferson B. Sessions, III, who was the Attorney General when Mr. Garcia-Morales filed his petition for review. ** This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Federal Rule of Appellate Procedure 32.1 and 10th Circuit Rule 32.1. Mr. Garcia-Morales argues that, contrary to the BIA’s conclusion, his accessory conviction under Idaho Code (“I.C.”) § 18-205 is categorically not a crime involving moral turpitude (“CIMT”). We agree with him. Exercising jurisdiction under 8 U.S.C. § 1252(a), we grant the petition and remand the case to the BIA for further proceedings consistent with this order and judgment. I Mr. Garcia-Morales is a citizen and native of Mexico who entered the United States without inspection. After he pleaded guilty in 2015 to a count of Injury to Children under I.C. § 18-1501(1), the Department of Homeland Security (“DHS”) served him with a Notice to Appear and charged him with two grounds of removability. The first ground was being present without admission or parole, pursuant to section 212(a)(6)(A)(i) of the INA, and the second ground was having been convicted of a CIMT, pursuant to section 212(a)(2)(A)(i)(I) of the INA. At a March 2016 hearing, the IJ sustained the first removability ground—which Mr. Garcia-Morales had conceded—but not the second, finding that I.C. § 18-1501(1) “does not require sufficiently culpable mens rea” to qualify as a CIMT. A.R. at 74–75 (Hr’g Tr., dated Mar. 7, 2016). Mr. Garcia-Morales subsequently filed an application for cancellation of removal under section 240A(b) of the INA, 8 U.S.C. § 1229b(b). 2 In September 2016, an Idaho court granted Mr. Garcia-Morales’s request for post-conviction relief based on ineffective assistance of counsel, allowing him to withdraw his guilty plea to a violation of I.C. § 18-1501(1) and instead plead guilty to an amended charge of Accessory to Felony in violation of I.C. § 18-205. That statute states the following: All persons are accessories who, having knowledge that a felony has been committed: (1) Willfully withhold or conceal it from a peace officer, judge, magistrate, grand jury or trial jury; or (2) Harbor and protect a person who committed such felony or who has been charged with or ...
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