Marin-Gonzales v. Sessions

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT January 9, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court ARACELI MARTIRES MARIN- GONZALES, a/k/a ARACIN MARIN, Petitioner, v. No. 17-9503 (Petition for Review) JEFFERSON B. SESSIONS, III, United States Attorney General, Respondent. _________________________________ ORDER AND JUDGMENT* _________________________________ Before LUCERO, BACHARACH, and MORITZ, Circuit Judges. _________________________________ After an Immigration Judge (IJ) pretermitted her cancellation-of-removal application based on a finding that she had a previous conviction for a crime involving moral turpitude (CIMT), petitioner Araceli Marin-Gonzales appealed to the Board of Immigration Appeals (BIA). The BIA dismissed her appeal and Marin- Gonzales petitions for review. Because Marin-Gonzales fails to demonstrate that her prior conviction isn’t for a CIMT, we deny her petition. * After examining the briefs and appellate record, this panel has determined unanimously that oral argument wouldn’t 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 isn’t binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. I Marin-Gonzales is a citizen of Mexico who entered the United States without inspection. In 2011, she pleaded guilty in Utah state court to attempted public- assistance fraud. See Utah Code Ann. § 76-8-1203(1)–(2) (prohibiting “intentionally, knowingly, or recklessly fail[ing] to disclose” certain “material fact[s]” when applying for public assistance); id. § 76-4-101(1) (defining attempt as (1) “engag[ing] in conduct constituting a substantial step toward commission of the crime” and (2) either “intend[ing] to commit the crime” or “when causing a particular result is an element of the crime, . . . act[ing] with an awareness that [the offender’s] conduct is reasonably certain to cause that result”). In 2015, the Department of Homeland Security initiated removal proceedings against Marin-Gonzales. In response, she applied for cancellation of removal. The IJ pretermitted her application, concluding in relevant part that her conviction for attempted public-assistance fraud constitutes a CIMT. See 8 U.S.C. § 1229b(b)(1)(C) (allowing cancellation of removal for certain aliens who, inter alia, haven’t “been convicted of an offense under” 8 U.S.C. § 1182(a)(2)); § 1182(a)(2)(A)(i)(I) (“[A]ny alien convicted of . . . a [CIMT] . . . is inadmissible.”). In doing so, the IJ reasoned that (1) this court “has held that any crime in which fraud is an ingredient has always been regarded as involving moral turpitude,” R. 56; (2) because “causing a particular result” isn’t “an element of” public-assistance fraud, Utah Code Ann. § 76-4- 101(1)(b)(ii), the crime of attempted public-assistance fraud necessarily has as an element the “inten[t] to commit the crime” of public-assistance fraud, id. § 76-4- 2 101(1)(b)(i); and (3) “[s]uch intentional, depraved conduct involves moral turpitude,” R. 57. Marin-Gonzales appealed to the BIA. Sitting as a single member, the BIA acknowledged that the ...

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