Garcia v. Holder, 584 F.3d 1288, 10th Cir. (2009)

FILED
United States Court of Appeals

Tenth Circuit
October 27, 2009

PUBLISH
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
CARLOS MARQUEZ GARCIA,

a/k/a Carlos Garcia Marquez,
a/k/a Carlos Marquez,
Petitioner,
v.
No. 08-9579
ERIC H. HOLDER, JR.,

United States Attorney General,
Respondent.
APPEAL FROM THE BOARD OF IMMIGRATION APPEALS

PETITION FOR REVIEW
Submitted on the briefs: *

Johnny K.M. Poon, Lau & Choi, P.C., Denver, Colorado, for Petitioner.
Thomas B. Fatouros, Senior Litigation Counsel, Annette M. Wietecha, Office of
Immigration Litigation, Civil Division, U.S. Department of Justice, Washington,
D.C., for Respondent.
Before LUCERO, BALDOCK, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
BALDOCK, Circuit Judge.
Carlos Marquez Garcia seeks judicial review of the denial of his application
for temporary protected status, voluntary departure, and cancellation of removal.
A native and citizen of El Salvador, Mr. Marquez 1 entered the United States
illegally in 1997 and concedes that he is removable as charged in the
Governments notice to appear. He argues, however, that the Board of
Immigration Appeals (BIA) erred in determining that he is ineligible for
the discretionary relief he has requested. Exercising our jurisdiction under
8 U.S.C. 1252(a) 2 and reviewing the BIAs legal determinations de novo,
Herrera-Castillo v. Holder, 573 F.3d 1004, 1007 (10th Cir. 2009), we deny
the petition.
We follow the petitioners lead in referring to himself simply as Marquez

rather than Marquez Garcia.
2
Although we generally lack jurisdiction to review denials of discretionary

relief, see 8 U.S.C. 1252(a)(2)(B), in this case, the denial of relief turned on the
purely legal determination that Mr. Marquezs inconclusive record of conviction
was not sufficient to satisfy his burden of proof under 8 C.F.R. 1240.8(d) with
respect to eligibility for the relief requested. As the Government acknowledges,
notwithstanding the jurisdiction-stripping provision of 1252(a)(2)(B), this court
always retains jurisdiction to review constitutional claims and questions of law.
Id. 1252(a)(2)(D); Alzainati v. Holder, 568 F.3d 844, 850 (10th Cir. 2009); see
Vasquez-Martinez v. Holder, 564 F.3d 712, 715 (5th Cir. 2009) (holding that
BIAs determination that an alien is ineligible for discretionary relief is a
question of law reviewable under 8 U.S.C. 1252(a)(2)(D)).
-2-
In 2003, Mr. Marquez pled guilty to committing third-degree assault in the

State of Colorado. The statute under which he was convicted provides in relevant
part that the crime of assault in the third degree occurs when a person knowingly
or recklessly causes bodily injury to another person. Colo. Rev. Stat.
18-3-204(1)(a). Mr. Marquezs guilty plea, however, was entered on a poorly
translated Spanish form, which failed to specify whether he was pleading guilty to
knowingly causing bodily injury or doing so only recklessly. The parties concede
that this information cannot be determined from any other conviction documents.
As a result, the record is inconclusive as to the mens rea component of
Mr. Marquezs crime, which is a critical factor in determining whether he
committed a crime involving moral turpitude (CIMT) and is thus disqualified
from receiving discretionary relief. See, e.g., In re Solon, 24 I. & N. Dec. 239,
242 (BIA 2007) (analyzing whether aliens assault conviction constituted a CIMT
for purposes of determining eligibility for relief from removal and noting that
intent [is] a crucial element in determining whether a crime involves moral
turpitude).
An alien convicted of a CIMT is considered inadmissible and is therefore
not eligible for cancellation of removal or temporary protected status. See
8 U.S.C. 1182(a)(2)(A); 1229b(b)(1)(c); and 1254a(c)(1)(A)(iii). Similarly,
voluntary departure is not available to an alien who has not been a person of
good moral character in the preceding five years. 8 U.S.C. 1229c(b)(1)(B).
-3-
Mr. Marquez does not appear to dispute that, if his Colorado conviction was for a
CIMT, he is not eligible for the relief requested. See Aplt. Op. Br. at 22-23
(acknowledging that the burden to establish eligibility for discretionary relief
rests with the alien). Both parties also concede that because the record of
conviction is inconclusive, Mr. Marquezs mens rea cannot be determined. The
point of contention is that each side claims the benefit of the records ambiguity.
We think the Government has the better argument.
An alien who has conceded removability has the burden of establishing
that he or she is eligible for any requested benefit or privilege and that it should
be granted in the exercise of discretion. 8 C.F.R. 1240.8(d); see also Schroeck
v. Gonzales, 429 F.3d 947, 952 (10th Cir. 2005). Since the record is inconclusive
as to whether Mr. Marquez committed a CIMT, the Government contends he has
not met his burden to establish that he is eligible for discretionary relief.
Mr. Marquez counters that he has met his burden because the record establishes
that the crime he committed was not necessarily a CIMT. Aplt. Op. Br. at 23.
In support, he cites a Ninth Circuit opinion holding that an alien can prove
eligibility for cancellation of removal with a record of conviction that is
inconclusive as to whether his crime would disqualify him for that relief.
See Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1130 (9th Cir. 2007).
In Sandoval-Lua, it could not be determined whether the aliens crime
constituted an aggravated felony, which would have precluded cancellation of
-4-
removal under 8 U.S.C. 1229b(a). The court acknowledged that it was the
aliens burden to prove eligibility for discretionary relief, see id. at 1127, but
decided he had done so by producing a conviction record evidencing that he was
not necessarily convicted of any aggravated felony, id. at 1130 (internal
quotation marks omitted). We agree with the BIA that this approach effectively
nullifies the statutorily prescribed burden of proof. As the Government stresses,
this is not a case of a lawfully admitted alien being charged with removability as
a result of a criminal conviction. Under that scenario, the Government would
have to prove by clear and convincing evidence that the alien is removable.
8 U.S.C. 1229a(c)(3)(A); Schroeck, 429 F.3d at 952. There is no question in
this case that Mr. Marquez is removable. Therefore, the burden shifted to him to
prove the absence of any impediment to discretionary relief. Being convicted of a
CIMT is such an impediment. See, e.g., Hernandez-Perez v. Holder, 569 F.3d
345, 347 (8th Cir. 2009) (explaining that a nonpermanent alien is not eligible for
cancellation of removal if he has been convicted of a CIMT); Serrato-Soto v.
Holder, 570 F.3d 686, 689 (6th Cir. 2009) (explaining same with respect to
voluntary departure).
The fact that Mr. Marquez is not to blame for the ambiguity surrounding
his criminal conviction does not relieve him of his obligation to prove eligibility
for discretionary relief. Because it is unclear from his record of conviction
whether he committed a CIMT, we conclude he has not proven eligibility for
-5-
cancellation of removal, temporary protected status, or voluntary departure. As

such, we see no error in the BIAs decision.
The petition for review is therefore DENIED.
-6-

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FILED

United States Court of Appeals

October 27, 2009

UNITED STATES COURT OF APPEALS

CARLOS MARQUEZ GARCIA,

ERIC H. HOLDER, JR.,

APPEAL FROM THE BOARD OF IMMIGRATION APPEALS

Submitted on the briefs: *

Before LUCERO, BALDOCK, and MURPHY, Circuit Judges.

BALDOCK, Circuit Judge.

We follow the petitioners lead in referring to himself simply as Marquez

Although we generally lack jurisdiction to review denials of discretionary

In 2003, Mr. Marquez pled guilty to committing third-degree assault in the

cancellation of removal, temporary protected status, or voluntary departure. As

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