Lujan-Jimenez v. Sessions

FILED United States Court of Appeals PUBLISH Tenth Circuit June 19, 2018 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker FOR THE TENTH CIRCUIT Clerk of Court _________________________________ ALEJANDRO LUJAN JIMENEZ, Petitioner, v. Nos. 16-9555 & 17-9527 JEFFERSON B. SESSIONS, III, United States Attorney General, Respondent. _________________________________ Petition for Review from the Board of Immigration Appeals _________________________________ James S. Lamb (Catherine A. Chan, on the briefs), Chan Law Firm, Denver, Colorado, for Petitioner. Jessica A. Dawgert, Senior Litigation Counsel (Chad A. Readler, Acting Assistant Attorney General, and Melissa Neiman-Kelting, Assistant Director, with her on the brief), U.S. Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent. _________________________________ Before BRISCOE, LUCERO, and BACHARACH, Circuit Judges. _________________________________ LUCERO, Circuit Judge. _________________________________ Alejandro Lujan Jimenez petitions for review from a final order of removal and an order by the Bureau of Immigration Appeals (“BIA”) declining to sua sponte reopen removal proceedings. We dismiss the latter petition for lack of jurisdiction. Exercising jurisdiction under 8 U.S.C. § 1252(a), we grant the former. The BIA incorrectly determined that Lujan’s1 Colorado conviction for first degree criminal trespass, Colo. Rev. Stat. § 18-4-502, was a crime involving moral turpitude. Under the portion of the statute at issue, a defendant must have unlawfully entered a “motor vehicle with intent to commit a crime therein.” Id. The BIA held that the crime intended is an element of the offense such that the statute is divisible on this basis. However, the Colorado Supreme Court has held an information charging only that a defendant intended to commit “a crime” contains “all essential elements of the crime of first degree criminal trespass.” People v. Williams, 984 P.2d 56, 63 (Colo. 1999). And in numerous Colorado cases involving similar crimes, juries have been instructed as to alternative ulterior offenses. We conclude that the Colorado statute is not divisible as to the particular ulterior offense. A prior decision of this court stating otherwise, United States v. Venzor-Granillo, 668 F.3d 1224 (10th Cir. 2012), cannot be reconciled with the approach to divisibility set forth in Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). I Lujan is a native and citizen of Mexico. He first entered the United States as a child sometime in the 1990s. His most recent entry into the United States occurred in May 2004. In January 2007, Lujan pled guilty in Colorado state court to Criminal 1 We refer to the petitioner as Lujan, consistent with the parties’ briefing. 2 Trespass of a Motor Vehicle with the Intent to Commit a Crime Therein, in violation of Colo. Rev. Stat. § 18-4-502. He was sentenced to thirty-five days in jail. On May 12, 2008, the Department of Homeland Security issued Lujan a Notice to Appear. It later filed an amended notice charging that he was removable under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present in the United States without being admitted or paroled. Lujan appeared in immigration court in September 2008 and received a continuance to hire an ...

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