FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT March 13, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court GLECERIA MEJIA HEARD, a/k/a Justine Michelle Gazemen, Petitioner, v. Nos. 17-9525 & 17-9539 (Petitions for Review) WILLIAM P. BARR,* United States Attorney General, Respondent. _________________________________ ORDER AND JUDGMENT** _________________________________ Before LUCERO, HOLMES, and EID, Circuit Judges. _________________________________ Gleceria Mejia Heard petitions the court to reverse the immigration courts’ determination that she is ineligible for cancellation of removal. The Immigration Judge (IJ) concluded, and the Board of Immigration Appeals (BIA) agreed, that Heard’s 2005 theft conviction qualifies as an aggravated felony under the Immigration and Nationality Act. We affirm. * Pursuant to Fed. R. App. P. 43(c), we have substituted Jefferson B. Sessions III, former United States Attorney General, for William P. Barr, current United States Attorney General. ** This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. I. Heard, an immigrant from the Philippines, was admitted to the United States as a lawful permanent resident in 1994. In 1999, she pleaded guilty to attempted forgery in violation of Nev. Rev. Stat. § 205.090. In 2005, she pleaded guilty to theft in violation of Nev. Rev. Stat. § 205.0832(1)(b). Based on these convictions, the Department of Homeland Security (DHS) initiated removal proceedings against her in 2016. DHS asserted two grounds in support of removability. First, DHS contended that Heard’s theft conviction under subsection (1)(b) is an aggravated felony under 8 U.S.C. §§ 1227(a)(2)(A)(iii) and 1101(a)(43)(G). Second, it contended that both Heard’s theft and attempted forgery convictions are crimes involving moral turpitude. 8 U.S.C. § 1227(a)(2)(A)(ii). Heard applied for cancellation of removal. The IJ determined her theft conviction under subsection (1)(b) constituted an aggravated felony and that she was ineligible for cancellation because of it. To reach this conclusion, the IJ determined that Nevada’s theft statute is divisible and that, under the modified categorical approach, subsection (1)(b) is not overbroad when compared to the federal generic definition of theft. Specifically, the IJ held that subsection (1)(b) “meets the generic definition of theft, as it describes conduct that involves the ‘taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if the deprivation is less than total or permanent.’” R. at 242 (citation omitted). Heard appealed to the BIA. The BIA dismissed her appeal, agreeing with the IJ’s reasoning: “[l]ike the Immigration 2 Judge, we conclude that section 205.0832(1)(b) defines a categorical ‘theft offense’ under section 101(a)(43)(G) of the Act because it requires that the defendant exercise control over the owner’s property without consent and with the intent to deprive the owner of the rights and benefits of ownership.” R. at 6. The BIA also ...
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