Munguia-Baeza v. Sessions

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT March 16, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court JOSE EDUARDO MUNGUIA- BAEZA, Petitioner, v. No. 17-9523 (Petition for Review) JEFFERSON B. SESSIONS, III, United States Attorney General, Respondent. _________________________________ ORDER AND JUDGMENT * _________________________________ Before MATHESON, BACHARACH, and PHILLIPS, Circuit Judges. _________________________________ Aliens are subject to removal when convicted of two or more crimes involving moral turpitude. 8 U.S.C. § 1227(a)(2)(A)(ii). 1 Even when aliens are otherwise removable, they can ordinarily seek cancellation of removal; * The parties do not request oral argument, and it would not materially help us to decide this appeal. As a result, we decide the appeal based on the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value under Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A). 1 Aliens are also subject to removal when convicted of an aggravated felony. 8 U.S.C. § 1227(a)(2)(A)(iii). The government initially invoked this provision but later withdrew it as a basis for removal. but they are ineligible for cancellation of removal when convicted of an aggravated felony. 8 U.S.C. § 1229b(a)(3). These provisions underlie the appeal here, which was brought by Mr. Jose Eduardo Munguia-Baeza, who is a citizen of Mexico trying to remain in the United States as a lawful permanent resident. He was ordered removed based on two past convictions for crimes that the Board of Immigration Appeals regarded as crimes involving moral turpitude. And when Mr. Munguia-Baeza sought cancellation of removal, the Board ruled that he was ineligible based on a past conviction for an aggravated felony. Mr. Munguia-Baeza filed a petition for review of the Board’s rulings. On the challenge to removability, we grant the petition in part and remand for further proceedings. On the challenge involving cancellation of removal, we dismiss the petition for lack of jurisdiction. I. Background Alleging conviction of crimes involving moral turpitude and an aggravated felony, the government presented evidence of Colorado convictions for  identity theft (Colo. Rev. Stat. § 18-5-902(1)(a)),  first-degree aggravated motor vehicle theft (Colo. Rev. Stat. § 18-4-409(2), (3)(a)), and  second-degree burglary of a building (Colo. Rev. Stat. § 18-4-203(1)). 2 Mr. Munguia-Baeza denied removability and applied for cancellation of removal. An immigration judge found Mr. Munguia-Baeza removable, treating identity theft and aggravated motor vehicle theft as crimes involving moral turpitude. In addition, the immigration judge denied the application for cancellation of removal, classifying the past conviction for second-degree burglary as an aggravated felony. The immigration judge reasoned that second-degree burglary met one definition of an aggravated felony: “a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment is at least one year.” 8 U.S.C. § 1101(a)(43)(G). Mr. Munguia-Baeza ...

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