for Review from an Order of the Board of Immigration Appeals
D. Meade, MyRights Immigration Law Firm, Denver, Colorado,
Rebecca Hoffberg Phillips, Attorney, Office of Immigration
Litigation (Benjamin C. Mizer, Principal Deputy Assistant
Attorney General, Civil Division, Brianne Whelan Cohen,
Senior Litigation Counsel, Office of Immigration Litigation,
and Laura M.L. Maroldy, Trial Attorney, with her on the
briefs), United States Department of Justice, Washington,
D.C., for Respondent.
MATHESON, PHILLIPS, and McHUGH, Circuit Judges.
McHUGH, Circuit Judge.
Flores-Molina is an undocumented alien subject to removal
from the United States. An immigration judge determined he is
ineligible for cancellation of removal because he has been
convicted of a "crime involving moral turpitude."
The Board of Immigration Appeals agreed and dismissed Mr.
Flores-Molina's appeal. Mr. Flores-Molina then filed a
petition in this court, arguing the Board of Immigration
Appeals erred in finding that his crime of conviction, Denver
Municipal Code § 38-40, is a crime involving moral
turpitude. We agree. Exercising jurisdiction under 8 U.S.C.
§ 1252(a), we grant the petition and remand for further
Flores-Molina is a citizen of Mexico who came to the United
States illegally and has remained here continuously since
1998. In March 2000, he pled guilty to violating Denver
Municipal Code ("DMC") § 38-40, which
prohibits giving false information to a city official during
an investigation. In November 2011, following Mr.
Flores-Molina's conviction of a Colorado driving-related
offense, the federal government issued a Notice to Appear in
which it charged Mr. Flores-Molina with removability as
"[a]n alien present in the United States without being
admitted or paroled, or who arrives in the United States at
any time or place other than as designated by the Attorney
General." 8 U.S.C. § 1182(a)(6)(A)(i). In the
Notice to Appear, the government alleged, among other things,
that Mr. Flores-Molina (1) is not a citizen or national of
the United States, (2) is a citizen and national of Mexico,
and (3) was not admitted or paroled in the United States
after inspection by an immigration officer.
Flores-Molina admitted to these allegations in a written
response submitted to the immigration court. He also conceded
that he was removable as charged. The immigration judge held
a hearing on August 22, 2013, and found Mr. Flores-Molina
removable based on his admissions and concession.
same hearing, Mr. Flores-Molina submitted an application for
cancellation of removal pursuant to 8 U.S.C. § 1229b(b),
which allows the Attorney General to cancel the removal of a
noncitizen when four conditions are satisfied. See 8
U.S.C. § 1229b(b)(1)(A)-(D). One of these conditions is
that the applicant must not have been convicted of a
"crime involving moral turpitude." See id.
§ 1229b(b)(1)(C); id. § 1182(a)(2)(A)(i);
id. § 1227(a)(2)(A)(i). The government moved to
set aside Mr. Flores-Molina's application, arguing that
his DMC § 38-40 conviction is a conviction of a crime
involving moral turpitude ("CIMT") and that he is
therefore barred from seeking relief under §
December 10, 2013, the immigration judge held a status
eligibility conference to determine whether Mr. Flores-Molina
was barred from seeking cancellation of removal. After
hearing arguments from both sides, the immigration judge
found him statutorily barred because of his DMC § 38-40
conviction, concluding DMC § 38-40 is categorically a
CIMT. Specifically, the judge found that, because DMC §
38-40 requires "knowingly and willfully giving false
information during an investigation, " a violation of
the ordinance involves "deceptive conduct that results
in an impairment of governmental functions" and is
therefore "inherently morally turpitudinous."
Turning to the first step of a three-step CIMT framework set
forth by the Attorney General in Matter of
Silva-Trevino (Silva-Trevino I), 24 I&N
Dec. 687 (A.G. 2008), the immigration judge further concluded
"there is no reasonable probability in which a violation
of [DMC § 38-40] could criminalize non-morally
turpitudinous conduct." For these reasons, the
immigration judge denied Mr. Flores-Molina's application
for cancellation of removal.
Flores-Molina timely appealed to the Board of Immigration
Appeals ("BIA"), arguing the immigration judge
erred in finding he had been convicted of a CIMT because DMC
§ 38-40 does not contain "an express or inherent
intent to [de]fraud, deceive, or obstruct justice."
While the appeal was pending, the Attorney General vacated
Silva-Trevino I. See Matter of
Silva-Trevino, 26 I&N Dec. 550, 553 (A.G. 2015).
February 29, 2016, the BIA dismissed Mr. Flores-Molina's
appeal in a decision issued by a single Board Member. The BIA
first acknowledged that the immigration judge relied in part
on Silva-Trevino I and that the Attorney General had
since vacated that decision. But the BIA noted that, in doing
so, "the Attorney General specifically stated that he
does not intend to affect the [BIA]'s determinations as
to whether or not an offense entails 'reprehensible
conduct committed with some degree of scienter, ' and is
or is not a crime involving moral turpitude for that
reason." The BIA thus concluded that the vacatur of
Silva-Trevino I did not affect the immigration
judge's decision because her decision was based on
"well-established [BIA] precedent decisions relating to
whether these types of offenses involve the necessary
reprehensible conduct and degree of scienter to constitute
crimes involving moral turpitude."
then determined there was no basis for disturbing the
immigration judge's decision on the merits. In its brief
substantive discussion, the agency explained that it has
"consistently found that an offense that involves
impairing or obstructing a function of the Government by
deceit, graft, trickery, or dishonest means is a crime
involving moral turpitude." Rejecting Mr.
Flores-Molina's argument that DMC § 38-40 lacks a
sufficient intent element, the BIA stated that it has held
"intent may be implied where, as here, the statute of
conviction does not explicitly include intent as an element
but where such intent is implicit in the nature of the
offense." The BIA found that "knowingly and
willfully" providing false information satisfies the
requisite intent and thus concluded DMC § 38-40 is
categorically a CIMT. Mr. Flores-Molina appeals.
sole issue in this appeal is whether the BIA properly
concluded DMC § 38-40 is a "crime involving moral
turpitude" within the meaning of the Immigration and
Nationality Act ("INA"). If it is a CIMT, Mr.
Flores-Molina's conviction precludes him from seeking
cancellation of removal. See 8 U.S.C. §
1229b(b)(1); Garcia v. Holder, 584 F.3d 1288, 1289
(10th Cir. 2009) ("An alien convicted of a CIMT is . . .
not eligible for cancellation of removal . . . ."). If
it is not, he may be able to seek cancellation, depending on
whether he can satisfy the other statutory prerequisites on
remand. See 8 U.S.C. §
begin our discussion by addressing the applicable scope and
standard of review, as well as the general legal principles
relevant to this case. We then turn to the parties'
arguments concerning DMC § 38-40 and consider whether
the ordinance is categorically a CIMT. For the reasons set
forth below, we conclude it is not.
Scope and Standard of Review
scope of review directly correlates to the form of the BIA
decision." Rivera-Barrientos v. Holder, 666
F.3d 641, 645 (10th Cir. 2012) (citation omitted). Here,
because a single member of the BIA decided Mr.
Flores-Molina's appeal and issued a brief opinion
pursuant to 8 C.F.R. § 1003.1(e)(5), we review the
BIA's decision as the agency's final order of
removal. See Uanreroro v. Gonzales, 443 F.3d 1197,
1204 (10th Cir. 2006); see also Morones-Quinones v.
Holder, 591 F.App'x 660, 661-62 (10th Cir. 2014)
(unpublished). Although we usually lack jurisdiction to
review BIA orders concerning cancellation under § 1229b,
see 8 U.S.C. § 1252(a)(2)(B)(i), we have
jurisdiction to review questions of law decided in those
orders, id. § 1252(a)(2)(D);
Rodriguez-Heredia v. Holder, 639 F.3d 1264, 1267
(10th Cir. 2011).
a cancellation-of-removal applicant's crime of conviction
constitutes a CIMT is a question of law, and we review the
BIA's legal conclusions de novo.
Rodriguez-Heredia, 639 F.3d at 1267. We do not defer
to the BIA's interpretation of the substance of the state
or local offense at issue, as that task has not been
specifically delegated to the BIA and does not fall within
its special expertise. See Efagene v. Holder, 642
F.3d 918, 921 (10th Cir. 2011). However, because determining
whether a given offense is a CIMT for purposes of the INA
requires interpreting that statutory phrase, we may owe
deference to the BIA's decision under Chevron U.S.A.,
Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984).
Chevron, we defer to an agency's interpretation
of a statute that it is responsible to implement if (1) the
statute is ambiguous or silent as to the issue at hand and
(2) the agency's interpretation is neither arbitrary,
capricious, nor manifestly contrary to the statute."
Carpio v. Holder, 592 F.3d 1091, 1096 (10th Cir.
2010) (alteration and internal quotation marks omitted).
Because the BIA is charged with administering the INA,
Rangel-Perez v. Lynch, 816 F.3d 591, 597 (10th Cir.
2016), "the BIA's interpretations of ambiguous
provisions in the [INA] are entitled to [Chevron]
deference" when otherwise warranted, see
Rivera-Barrientos, 666 F.3d at 645. The INA does not
define "crime involving moral turpitude, " and we
have characterized it as "perhaps the quintessential
example of an ambiguous phrase." De Leon v.
Lynch, 808 F.3d 1224, 1228 (10th Cir. 2015) (quoting
Marmolejo-Campos v. Holder, 558 F.3d 903, 909 (9th
Cir. 2009) (en banc)). Thus, if we conclude de novo that the
BIA has properly construed the underlying offense at issue,
we will defer to the BIA's interpretation of the
statutory term CIMT as embracing the offense, as long as that
interpretation is reasonable. See Efagene, 642 F.3d
at 921; Marmolejo-Campos, 558 F.3d at 911.
every BIA decision interpreting the INA qualifies for
deference. Efagene, 642 F.3d at 920. "[T]his
court need only defer to the BIA's interpretation of the
INA when the BIA acts in its lawmaking capacity and, in the
case of the BIA's adjudications, that means only when the
BIA's decision is binding precedent within the
agency." Rangel-Perez, 816 F.3d at 597. A
decision made by a single board member, like the decision
here, is not precedential within the agency and therefore
ordinarily is not entitled to deference. See
Efagene, 642 F.3d at 920. Nonetheless, Chevron
deference may extend to such a decision if it is based on a
prior precedential BIA decision "addressing the
same question." Rangel-Perez, 816 F.3d
at 597 (citation omitted). Here, for reasons described below,
we conclude that to the extent the government argues for
Chevron deference, the BIA's decision is not
entitled to it because the cases on which the BIA relied do
not address offenses sufficiently comparable to DMC §
Chevron deference is not appropriate, we consider
whether the BIA's decision has "the power to
persuade" and is therefore entitled to Skidmore
deference. Carpio, 592 F.3d at 1098 (discussing
Skidmore v. Swift & Co., 323 U.S. 134 (1944)).
In making this determination, we consider "the degree of
the [BIA]'s care[;] its consistency, formality, and
relative expertness[;] and . . . the persuasiveness of [its]
position." United States v. Mead Corp., 533
U.S. 218, 228 (2001) (footnotes omitted); see also
Carpio, 592 F.3d at 1098 ("We examine 'the
thoroughness evident in the BIA's consideration, the
validity of its reasoning, and its consistency with earlier
and later pronouncements.'" (alterations omitted)
(quoting Skidmore, 323 U.S. at 140)). We also
decline to extend Skidmore deference in this case
because the BIA's decision lacks "the power to
process by which we determine whether a noncitizen's
offense of conviction constitutes a CIMT is called the
"categorical approach." Rodriguez-Heredia v.
Holder, 639 F.3d 1264, 1267 (10th Cir. 2011). "The
categorical approach . . . requires ignoring a
petitioner's actual conduct and examining only the
minimum conduct needed for a conviction under the relevant
state [or local] law." Ibarra v. Holder, 736
F.3d 903, 907 (10th Cir. 2013). Thus, to 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. See Moncrieffe v. Holder, 133
S.Ct. 1678, 1684 (2013); Rodriguez-Heredia, 639 F.3d
at 1267; see also Perez v. Lynch, 630 F.App'x
870, 872 (10th Cir. 2015) (unpublished) (applying the
categorical approach to determine whether a different
provision of the Denver Municipal Code was a CIMT). "If
every conviction under a given state statute [or city
ordinance] involves moral turpitude, then the . . .
conviction is categorically a CIMT." Veloz-Luvevano
v. Lynch, 799 F.3d 1308, 1313 (10th Cir. 2015)
(alterations and citation omitted); see also
Moncrieffe, 133 S.Ct. at 1684 ("[A] state offense
is a categorical match with a generic federal offense only if
a conviction of the state offense necessarily involved facts
equating to the generic federal offense." (alterations
and internal quotation marks omitted)).
noted above, the INA does not provide a generic definition of
"crime involving moral turpitude." Rather,
"its contours have been shaped through interpretation
and application by the Attorney General, the [BIA], and
federal courts." De Leon v. Lynch, 808 F.3d
1224, 1228 (10th Cir. 2015). Generally speaking,
"[m]oral turpitude refers 'to conduct which is
inherently base, vile, or depraved, contrary to the accepted
rules of morality.'" Wittgenstein v. INS,
124 F.3d 1244, 1246 (10th Cir. 1997) (quoting Matter of
Flores, 17 I&N Dec. 225, 227 (B.I.A. 1980)).
"Moral turpitude reaches conduct that is inherently
wrong, or malum in se, rather than conduct deemed
wrong only because of a statutory proscription, malum
prohibitum." Efagene v. Holder, 642 F.3d
918, 921 (10th Cir. 2011). "[F]or an offense to involve
moral turpitude, it must require a reprehensible or
despicable act" and "necessarily involve an evil
intent or maliciousness in carrying out th[at] reprehensible
act." Id. at 921-22. Or, in the formulation
referenced by the BIA here, an offense qualifies as a CIMT if
it entails both "reprehensible conduct and some form of
scienter." See Matter of Silva-Trevino, 26
I&N Dec. 550, 553 n.3 (A.G. 2015) (citation omitted).
these "very general" translations, see De
Leon, 808 F.3d at 1228, the BIA and courts have espoused
what might be characterized as subsidiary definitions and
rules applicable to narrower classes of conduct. One
well-established rule, for instance, is that "[c]rimes
in which fraud is an ingredient are regarded as involving
moral turpitude." Veloz-Luvevano, 799 F.3d at
1313 (alterations and citation omitted); see also Arias
v. Lynch, 834 F.3d 823, 827 (7th Cir. 2016)
("Despite the confusion about how to determine what
moral turpitude is, there is a consensus that fraud is close
to the core of moral turpitude."). In several decisions,
the BIA has found an offense implicitly fraudulent- and thus,
a CIMT-where it involved "impair[ing] or obstruct[ing]
an important function of a department of the government by
defeating its efficiency or destroying the value of its
lawful operations by deceit, graft, trickery, or dishonest
means." E.g., Matter of Flores, 17
I&N Dec. at 229.
the BIA relied on this latter interpretation in deeming DMC
§ 38-40 a CIMT. Section 38-40 provides:
It shall be unlawful for any person knowingly and willfully
to give false information to an officer or employee of the
city when such officer or employee is acting in their
official capacity, concerning the identity of any person
participating in, connected with, or responsible for, or
concerning the manner of the commission of, any act, when, as