Marin-Gonzales v. Sessions

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 9, 2018
• Docket: 17-9503
• Status: Unpublished

Opinion

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 crime of public-assistance fraud may be committed recklessly.

See Utah Code Ann. § 76-8-1203(1)–(2). And it also recognized that “[a]s a general

rule, crimes involving a reckless mental state will not be deemed to involve moral

turpitude unless they are coupled with a serious statutory aggravating factor such as

the death of a person or the use of a firearm.” R. 5. But the BIA nevertheless

concluded that “because [Marin-Gonzales] was convicted for an attempt to commit

public[-]assistance fraud, she necessarily acted either knowingly or intentionally as

one cannot logically attempt to be reckless.” Id. (emphasis added). Thus, the BIA

concluded that Marin-Gonzales’ “conviction categorically constitutes a [CIMT] as a

matter of law,” id., and dismissed her appeal. Marin-Gonzales petitions for review.

II

Marin-Gonzales challenges the BIA’s determination that her conviction for

attempted public-assistance fraud constitutes a CIMT. Because this issue presents a

question of law, our review is de novo. Rodriguez-Heredia v. Holder, 639 F.3d 1264,

1267 (10th Cir. 2011).

“[T]o determine whether a state or local offense is ‘categorically’ a CIMT, we

compare the statutory definition of that offense with the generic definition of CIMT

and consider whether the minimum conduct that would satisfy the former would

necessarily also satisfy the latter.” Flores-Molina v. Sessions, 850 F.3d 1150, 1158

3 (10th Cir. 2017) (quoting Moncrieffe v. Holder, 569 U.S. 184, 190 (2013)). This

“inquiry focuses on whether the ‘state statute creates a crime outside the generic

definition of a listed crime in a federal statute.’” Rodriguez-Heredia, 639 F.3d at

1267 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)). And this

standard, in turn, “requires a realistic probability, not a theoretical possibility, that

the [s]tate would apply its statute to conduct that falls outside the generic definition

of a crime.” Id. (quoting Duenas-Alvarez, 549 U.S. at 193).

Marin-Gonzales can’t make that showing here. True, the government concedes

that public-assistance fraud itself isn’t categorically a CIMT. That’s because an

offender can commit public-assistance fraud by “intentionally, knowingly, or

recklessly fail[ing] to disclose a material fact.” Utah Code. Ann. § 76-8-1203(2).

Thus, “‘the least of th[e] acts’ criminalized [by the statute]” is recklessly failing to

disclose a material fact.1 De Leon v. Lynch, 808 F.3d 1224, 1230 (10th Cir. 2015)

(quoting Moncrieffe, 569 U.S. at 191). And in the absence of any aggravating factors,

reckless offenses typically don’t constitute CIMTs. See, e.g., Gomez-Perez v. Lynch,

829 F.3d 323, 328 (5th Cir. 2016) (“Texas’s assault statute can be committed by mere

reckless conduct and thus does not qualify as a [CIMT], which requires a more

culpable mental state.”); In Re Fualaau, 21 I. & N. Dec. 475, 478 (BIA 1996) (noting

that BIA has “never held that a crime involving reckless conduct is per se a [CIMT]”;

1 For purposes of this appeal, we accept the government’s concession that Utah Code. Ann. § 76-8-1203(2) isn’t a divisible statute. Thus, the modified categorical approach doesn’t apply. Cf. United States v. Pam, 867 F.3d 1191, 1204 (10th Cir. 2017) (explaining that modified categorical approach applies only to divisible statutes). 4 instead, “to be deemed a [CIMT], the element of a reckless state of mind must be

coupled with an offense involving [an aggravating factor, such as] the infliction of

serious bodily injury”).

But that doesn’t end our inquiry. That’s because Marin-Gonzales wasn’t

convicted of public-assistance fraud; she was convicted of attempted public-

assistance fraud. And the BIA concluded that even if public-assistance fraud isn’t

categorically a CIMT, attempted public-assistance fraud is. In doing so, the BIA

reasoned that attempted public-assistance fraud can only be committed “knowingly or

intentionally,” R. 5, because “[a] person cannot intend to commit a criminally

reckless act,” id. (quoting Knapik v. Ashcroft, 384 F.3d 84, 91 (3d Cir. 2004)); see

also Utah Code Ann. § 76-4-101(1)(a), (b)(i) (defining attempt, in part, as

“engag[ing] in conduct constituting a substantial step toward commission of the

crime; and . . . intend[ing] to commit the crime” (emphasis added)).

Marin-Gonzales advances two challenges to this approach. First, she says the

BIA’s analysis ignores the fact that, under Utah law, one can attempt to commit a

crime without intending to commit it. In support, she cites Utah Code Ann. § 76-4-

101(1)(a) and (b)(ii), which define “attempt,” in part, as “engag[ing] in conduct

constituting a substantial step toward commission of the crime; and . . . 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.” Moreover, Marin-

Gonzales asserts, Utah Code Ann. § 76-4-101(1)(b)(ii)’s definition of attempt

incorporates language that “is simply a restatement of the Utah definition of

5 ‘recklessness.’” Pet. Br. 15. Thus, Marin-Gonzales insists, “Utah’s attempt statute

can be violated on a ‘reckless’ mens rea also.” Id.

We reject this argument for two reasons. First, even assuming that Utah’s

attempt statute generally leaves room for reckless conduct, Marin-Gonzales was

convicted of attempting to commit a specific offense: public-assistance fraud. Cf.

United States v. Castro-Gomez, 792 F.3d 1216, 1218, 1220 (10th Cir. 2015) (viewing

state statute criminalizing substantive offense “in tandem” with state statute defining

attempt to determine, for purposes of crime-of-violence inquiry, elements of

defendant’s crime of conviction). Thus, to invoke the language of Utah Code Ann.

§ 76-4-101(1)(b)(ii)—which applies only “when causing a particular result is an

element of the crime”—Marin-Gonzales must first demonstrate that “causing a

particular result is an element of” public-assistance fraud. If not, then one can only

commit attempted public-assistance fraud by “engag[ing] in conduct constituting a

substantial step toward commission of th[at] crime; and . . . intend[ing] to commit

th[at] crime,” Utah Code Ann. § 76-4-101(1)(a), (b)(i), thus rendering Utah Code

Ann. § 76-4-101(1)(b)(ii)’s alternative definition of attempt irrelevant to our inquiry.

But Marin-Gonzales’ opening brief neither (1) asserts that public-assistance

fraud has as an element “causing a particular result,” Utah Code. Ann. § 76-4-

101(1)(b)(ii); nor (2) cites any legal authorities that might support that proposition.

Nor does Marin-Gonzales attempt to make this showing in her reply brief—even after

the government expressly argues in its response brief that “a particular result is [not]

an element of” public-assistance fraud. Resp. Br. 18. Accordingly, we could find this

6 argument inadequately briefed and decline to consider it. See Fed. R. App. P.

28(a)(8)(A) (requiring argument section of appellant’s brief to contain “appellant’s

contentions and the reasons for them, with citations to the authorities . . . on which

the appellant relies”); Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007)

(explaining that we routinely decline to address arguments that fail to comply with

these requirements).

Alternatively, even if we (1) overlooked these briefing deficiencies and

(2) assumed that one could commit attempted public-assistance fraud by “engag[ing]

in conduct constituting a substantial step toward commission of the crime; and . . .

act[ing] with an awareness that [the offender’s] conduct is reasonably certain to cause

[a particular] result,” Utah Code. Ann. § 76-4-101(1)(a), (b)(ii), Marin-Gonzales is

incorrect that this language equates with Utah’s definition of reckless conduct.

Instead, as the government points out, this language tracks almost perfectly with

Utah’s definition of knowing conduct. Compare Utah Code Ann. § 76-2-103(3) (“A

person engages in conduct . . . [r]ecklessly with respect to circumstances surrounding his

conduct or the result of his conduct when he is aware of but consciously disregards a

substantial and unjustifiable risk that the circumstances exist or the result will occur.”),

with id. § 76-2-103(2) (“A person acts knowingly, or with knowledge, with respect to a

result of his conduct when he is aware that his conduct is reasonably certain to cause the

result.”). Thus, we reject Marin-Gonzales assertion that the language of Utah Code Ann.

§ 76-4-101(1)(b)(ii)—even assuming it could be invoked to charge someone with

7 attempted public-assistance fraud—would make recklessness an element of that

offense.

Marin-Gonzales also advances a second, alternative argument. She asserts that

if she instead pleaded guilty to attempted public-assistance fraud under Utah Code

Ann. § 76-4-101(1)(b)(i)’s definition of attempt, which requires that an offender

“intend[] to commit the [underlying] crime,” Utah Code Ann. § 76-4-101(1)(b)(i),

then she didn’t plead guilty to a CIMT because (1) the elements of that offense might

include intending to recklessly fail to disclose a material fact, see Utah Code Ann.

§ 76-4-101(1)(b)(i); Utah Code Ann. § 76-8-1203(1)–(2), and (2) the concept of

“intentionally reckless[] or recklessly intentional conduct[] is a legal nullity,” Pet. Br.

16.

In support, Marin-Gonzales cites Knapik v. Ashcroft, 384 F.3d 84 (3d Cir.

2004). There, the Third Circuit held that the petitioner’s New York conviction for

attempted reckless endangerment wasn’t a CIMT because “categorically speaking,

the concept makes no sense. Attempt (necessarily requiring intent to commit a crime)

is inconsistent with recklessness (which, by definition, implies acting without

intent).” Id. at 92.

But it’s precisely because this “concept makes no sense,” id., that the BIA

deduced here that the offense Marin-Gonzales pleaded guilty to has as an element

intentionally or knowingly failing to disclose a material fact, as opposed to recklessly

failing to do so. The BIA reasoned that “because [Marin-Gonzales] was convicted for

8 an attempt to commit public[-]assistance fraud, she necessarily acted either

knowingly or intentionally as one cannot logically attempt to be reckless.” R. 5.

Marin-Gonzales suggests that even though “one cannot logically attempt to be

reckless,” id., “many state statutes engage in this fiction,” Pet. Br. 16. We don’t

necessarily disagree. For instance, it appears that New York “engage[d] in this

fiction,” id., when it allowed the petitioner in Knapik to plead guilty “to the crime of

attempted reckless endangerment.” 384 F.3d at 86.

The problem is that Marin-Gonzales makes no effort to demonstrate that Utah

“engage[s] in this fiction.” Pet. Br. 16. That is, Marin-Gonzales doesn’t point to any

evidence that she pleaded guilty to attempted reckless public-assistance fraud. Nor

does she identify any other instances in which Utah has applied Utah Code Ann.

§ 76-4-101(1)(b)(i) and Utah Code Ann. § 76-8-1203(1)–(2) to charge someone with

or convict someone of attempted reckless public-assistance fraud. Thus, she hasn’t

“established that there is a realistic probability that [Utah Code Ann. § 76-4-

101(1)(b)(i) and Utah Code Ann. § 76-8-1203(1)–(2)] would be applied to reach

conduct that is not a crime involving moral turpitude”—i.e., “to reach [reckless]

conduct.” Rodriguez-Heredia, 639 F.3d at 1267; see also id. (explaining that to make

this showing, petitioner “must at least point to his [or her] own case or other cases in

which the state courts in fact did apply the statute in the special (nongeneric) manner

for which he [or she] argues” (quoting Duenas-Alvarez, 549 U.S. at 193)).

9 Because Marin-Gonzales fails to make this showing, she fails to demonstrate

that her conviction for attempted public-assistance fraud isn’t a CIMT. Accordingly,

we deny her petition.

Entered for the Court

Nancy L. Moritz Circuit Judge