May 24, 2018

Tenth Circuit: Petitioner Ineligible for Cancellation of Removal After Theft Convictions

The Tenth Circuit Court of Appeals Issued its opinion in Lucio-Rayos v. Sessions on Tuesday, November 14, 2017.

The issue presented in this case was whether petitioner Lucio-Rayos’s municipal theft conviction qualified as a crime involving moral turpitude (CIMT). If so, it would make him ineligible for cancellation of removal. Lucio-Rayos is a citizen of Mexico who entered the United States without authorization. Although he conceded that he was subject to removal, he sought discretionary relief in the form of cancellation of removal.

Lucio-Rayos first contended that the immigration judge erred in refusing to recuse from his case because the immigration judge’s spouse works with the Denver Immigration and Customs Enforcement office that initiated this removal proceeding. The Tenth Circuit rejected this argument.

In order to prevail on this argument, Lucio-Rayos had to establish that he was deprived of due process and that the deprivation prejudiced him. Lucio-Rayos presented extrajudicial-influence and inherent-bias arguments relying on law that requires a federal judge to recuse in any proceeding in which his impartiality might reasonably be questioned. However, the Immigration and Customs Enforcement office had a plan in place to ensure that the immigration judge’s spouse had no involvement in the case. Further, there is no evidence suggesting that the immigration judge’s spouse played any role in Lucio-Rayos’ removal proceedings. The immigration judge’s spouse was not a party, officer, director, or trustee of a party in this matter.

In addition, Lucio-Rayos has not shown that he was prejudiced by the immigration judge’s refusal to recuse; that is, Lucio-Rayos has not shown that his rights were violated in a manner so as potentially to affect the outcome of the proceedings.

Next, the Tenth Circuit concluded that Lucio-Rayos is ineligible for cancellation of removal. To be eligible for cancellation of removal, Lucio-Rayos had to meet four requirements. The only one at issue was whether Lucio-Rayos’s conviction for theft is a CIMT.

The Tenth Circuit applied the categorical approach by comparing the elements of Lucio-Rayos’s offense to the definition of CIMT, which refers to conduct which is inherently base, vile, or depraved, contrary to the accepted rules of morality, and conduct that is inherently wrong, rather than conduct deemed wrong only because of a statutory proscription. The lower court found that a conviction like Lucio-Rayos’s qualifies as a CIMT only if one element of the offense is that the perpetrator intended to deprive the victim permanently of his property. The Tenth Circuit found, however, that not all convictions under the applicable theft provision require proof that the defendant intended to deprive the victim of his property permanently. The applicable code was found to be divisible.

The Tenth Circuit found that the undocumented alien bears the burden of proof to show that his conviction was not a CIMT. The Tenth Circuit held that, because it was unclear from Lucio-Rayos’s record whether he committed a CIMT, he did not prove eligibility for cancellation of removal.

Lastly, Lucio-Rayos contended that if his conviction was a CIMT, he nevertheless met an exception to ineligibility available for petty offenses. However, the Tenth Circuit held that in this situation, the petty offense exception did not prevent an immigrant’s CIMT conviction from disqualifying him from eligibility for discretionary cancellation of removal.

The Tenth Circuit Court of Appeals DENIED Lucio-Rayos’s petition for review and found he was not eligible for cancellation of removal.