Lucio-Rayos v. Sessions

FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS November 14, 2017 Elisabeth A. Shumaker FOR THE TENTH CIRCUIT Clerk of Court _________________________________ JUAN ALBERTO LUCIO-RAYOS, Petitioner, v. No. 15-9584 JEFFERSON B. SESSIONS III, United States Attorney General, Respondent. ------------------------------ IMMIGRANT DEFENSE PROJECT; NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD; AMERICAN IMMIGRATION LAWYERS ASSOCIATION; DETENTION WATCH NETWORK; ROCKY MOUNTAIN IMMIGRANT ADVOCACY NETWORK; COLORADO LAWYERS COMMITTEE; NEW MEXICO CRIMINAL DEFENSE LAWYERS ASSOCIATION; UTAH ASSOCIATION OF CRIMINAL DEFENSE LAWYERS; PROFESSOR CHRISTOPHER LASCH; PROFESSOR NOAH B. NOVOGRODSKY; PROFESSOR VIOLETA CHAPIN, Amici Curiae. _________________________________ Appeal from the Board of Immigration Appeals (Petition for Review) _________________________________ James S. Lamb, Chan Law Firm, Denver, Colorado, for Petitioner. Corey L. Farrell (Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Terri J. Scadron, Assistant Director, and Lisa Morinelli, on the brief), United States Department of Justice, Washington, D.C. for Respondent. Aaron Scherzer (Jayashri Srikantiah and Lisa Weissman-Ward, Mills Legal Clinic, Stanford, California; Manuel Vargas and Andrew Wachtenheim, Immigrant Defense Project, New York, New York, on the brief), Orrick, Harrington & Sutcliffe, LLP, New York, New York, for Amici Curiae. _________________________________ Before HARTZ and EBEL, Circuit Judges.1 _________________________________ EBEL, Circuit Judge. _________________________________ The question presented in this petition for review is whether Petitioner Juan Alberto Lucio-Rayos’s municipal theft conviction qualifies as a crime involving moral turpitude (“CIMT”), which would make him ineligible for cancellation of removal. Lucio-Rayos was convicted under a divisible municipal code provision that sets forth several different theft offenses, some of which qualify as CIMTs and some of which do not. Applying the modified categorical approach, it is not possible to tell which theft offense was the basis of Lucio-Rayos’s conviction. However, because it is Lucio-Rayos’s burden to establish his eligibility for cancellation of removal, he 1 The Honorable Neil Gorsuch participated in the oral argument but not in the decision in this case. The practice of this court permits the remaining two panel judges, if in agreement, to act as a quorum in resolving the appeal. See 28 U.S.C. § 46(d); see also United States v. Wiles, 106 F.3d 1516, 1516 n.* (10th Cir. 1997) (noting that this court allows remaining panel judges to act as a quorum to resolve an appeal). In this case, the two remaining panel members are in agreement. 2 bears the brunt of this inconclusive record. We, therefore, uphold the Board of Immigration Appeals (“BIA”)’s determination that Lucio-Rayos has not shown that he is eligible for cancellation of removal. We also conclude that the immigration judge (“IJ”) did not deprive Lucio-Rayos of due process by refusing to recuse from hearing his case. Thus, having jurisdiction under 8 U.S.C. § 1252(a)(2)(D), we DENY Lucio-Rayos’s petition for review.2 I. BACKGROUND Lucio-Rayos, a citizen of Mexico who entered the United States without authorization, conceded that he is subject to removal, but seeks discretionary relief from the Attorney General in the form of cancellation of removal under 8 U.S.C. § 1229b(b). The IJ ruled that Lucio-Rayos is not ...

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