Obregon de Leon v. Holder ( 2015 )


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  •                                                                       FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
    
                                                                    December 22, 2015
                                         PUBLISH                  Elisabeth A. Shumaker
                                                                      Clerk of Court
                            UNITED STATES COURT OF APPEALS
    
                                     TENTH CIRCUIT
    
    
     CRISTIAN EDUARDO OBREGON
     DE LEON,
    
              Petitioner,
                                                            No. 13-9601
     v.
    
     LORETTA E. LYNCH, United States
     Attorney General, *
    
              Respondent.
    
    
                                      Petition for Review
                            from the Board of Immigration Appeals
    
    
    Kelli J. Stump, Stump & Associates, Oklahoma City, Oklahoma, for Petitioner.
    
    Wendy Benner-Leon, Office of Immigration Litigation, Civil Division, United
    States Department of Justice, Washington, D.C. (Stuart F. Delery, Assistant
    Attorney General, Civil Division, and Terri J. Scadron, Assistant Director, Office
    of Immigration Litigation, on the brief) for Respondent
    
    
    Before HOLMES, MATHESON, and McHUGH, Circuit Judges.
    
    
    HOLMES, Circuit Judge.
    
    
    
    
          *
                In accordance with Rule 43(c)(2) of the Federal Rules of Appellate
    Procedure, Loretta E. Lynch is substituted for Eric H. Holder, Jr., as the
    respondent in this action.
          Petitioner Cristian Eduardo Obregon de Leon (“Mr. Obregon”), a lawful
    
    permanent resident of the United States, was convicted under Oklahoma law of
    
    various offenses, including possession of stolen vehicles and receipt of stolen
    
    property. He was subsequently placed into removal proceedings and deemed
    
    removable for having been convicted of a crime involving moral turpitude under 8
    
    U.S.C. § 1227(a)(2)(A)(i). The Immigration Judge (“IJ”) and the Board of
    
    Immigration Appeals (“BIA” or “the Board”) found that he was statutorily
    
    ineligible to apply for a discretionary waiver of removal under 8 U.S.C. § 1182(h)
    
    because he had previously adjusted to lawful permanent residence status. Mr.
    
    Obregon challenges both of these determinations in his petition for review of the
    
    BIA’s decision.
    
          We affirm the Board’s determination that Mr. Obregon is removable
    
    because his conviction for possession of stolen vehicles constitutes a crime
    
    involving moral turpitude. However, Mr. Obregon is statutorily eligible to apply
    
    for a discretionary waiver under § 1182(h). Thus, we deny in part and grant in
    
    part his petition for review and remand to the BIA for further proceedings
    
    consistent with this opinion.
    
                                             I
    
          Mr. Obregon is a native citizen of Guatemala who entered the United States
    
    without inspection in September 1997. On March 29, 2007, he adjusted his status
    
    to that of a lawful permanent resident (“LPR”) under Section 203 of the
    
                                             2
    Nicaraguan Adjustment and Central American Relief Act of 1997, Pub. L. No.
    
    105-100, 111 Stat. 2160. Four years later, in 2011, Mr. Obregon was charged
    
    with, and pleaded guilty to, the following offenses in Oklahoma state court: (1)
    
    one count of operation of a chop shop; 1 (2) four counts of possession of a vehicle
    
    with altered identification numbers; 2 (3) four counts of possession of a stolen
    
    vehicle; 3 and (4) two counts of receipt of stolen property. 4
    
    
          1
                 Okla. Stat. tit. 47, § 1503(A) provides, in relevant part:
    
                 Any person who knowingly and with intent that a violation of
                 this section be committed:
    
                 1.     Owns, operates, or conducts a chop shop;
    
                        [. . .]
    
                 upon conviction, is guilty of a felony . . . .
          2
                 Okla. Stat. tit. 47, § 4–107(a) provides, in relevant part:
    
                 Any person . . . who shall destroy, remove, cover, alter or deface,
                 or cause to be destroyed, removed, covered, altered or defaced,
                 the engine number or other distinguishing number of any vehicle
                 in this state . . . shall be deemed guilty of a felony . . . .
          3
                 Okla. Stat. tit. 47, § 4–103 provides, in relevant part:
    
                 A person not entitled to the possession of a vehicle . . . who
                 receives, possesses, conceals, sells, or disposes of it, knowing the
                 vehicle . . . to be stolen or converted under circumstances
                 constituting a crime, shall be guilty of a felony.
          4
                 Okla. Stat. tit. 21, § 1713(A) provides, in relevant part:
    
                 Every person who buys or receives, in any manner, upon any
                                                                     (continued...)
    
                                               3
          In January 2013, the Department of Homeland Security (“DHS”) filed a
    
    Notice to Appear (“NTA”) charging that Mr. Obregon was removable for having
    
    committed a crime involving moral turpitude (“CIMT”) under 8 U.S.C.
    
    § 1227(a)(2)(A)(i). 5 At his immigration hearing, Mr. Obregon admitted the
    
    factual allegations, but denied that he was removable because, he claimed, the
    
    Oklahoma statutes under which he was convicted did “not require an intent to
    
    deprive” and thus did not qualify as crimes of moral turpitude. R. at 53 (Hr’g Tr.,
    
    dated Mar. 18, 2013). However, the IJ found that all four of his convictions
    
    constituted crimes involving moral turpitude. With respect to eligibility for
    
    waiver relief, the IJ concluded that Mr. Obregon could not “readjust his status
    
    with a [§ 1182](h) waiver” under BIA precedent. Id. at 39 (Oral Decision of IJ,
    
    dated Apr. 22, 2013). 6
    
    
          4
              (...continued)
                    consideration, any personal property of any value whatsoever that
                    has been stolen . . . knowing or having reasonable cause to
                    believe the same to have been stolen . . . or who conceals,
                    withholds, or aids in concealing or withholding such property
                    from the owner, shall be guilty of a felony . . . .
          5
                 8 U.S.C. § 1227(a)(2)(A)(i) renders removable any alien “convicted
    of a crime involving moral turpitude committed within five years . . . after the
    date of admission,” and for which “a sentence of one year or longer may be
    imposed.”
          6
                  8 U.S.C. § 1182(h) authorizes the Attorney General, in her
    discretion, to waive the applicability of certain grounds of inadmissibility,
    including crimes involving moral turpitude. However, the Attorney General may
    not grant a waiver “in the case of an alien who has previously been admitted to
                                                                           (continued...)
    
                                                4
          Mr. Obregon then appealed to the BIA, alleging that the IJ erred because
    
    his convictions lacked the “permanent intent to deprive” element necessary to
    
    constitute crimes involving moral turpitude. Further, he claimed that he should
    
    have been allowed to apply for a § 1182(h) waiver since he did not enter the
    
    country as a lawful permanent resident, but rather “adjusted status” to that of a
    
    lawful permanent resident after entry.
    
          In a one-judge decision, the BIA dismissed Mr. Obregon’s appeal. It noted
    
    that “an offense of receiving stolen property qualifies as a CIMT where the
    
    offense includes an element of knowing that the property is stolen.” Id. at 4 (BIA
    
    Decision, dated Oct. 2, 2013). It concluded that Mr. Obregon’s convictions for
    
    possession of stolen vehicles and receiving stolen property met this mens rea
    
    threshold because they both required “a permanent taking of property known to be
    
    stolen.” Id. Finally, the BIA affirmed the IJ’s “findings concerning [Mr.
    
    Obregon’s] eligibility for relief” because, under its own precedential decision in
    
    Matter of Koljenovic, 25 I. & N. Dec. 219 (BIA 2010), Mr. Obregon “d[id] not
    
    qualify for a section [1182](h) waiver.” Id. This petition for review followed.
    
    
    
    
          6
            (...continued)
    the United States as an alien lawfully admitted for permanent residence if,” as
    relevant here, “the alien has not lawfully resided continuously in the United
    States for a period of not less than 7 years immediately preceding the date of
    initiation of [removal] proceedings.”
    
                                             5
                                            II
    
          Mr. Obregon’s petition presents two legal questions 7 for our review: (1)
    
    whether any of his convictions constitutes a crime involving moral turpitude; and
    
    (2) whether 8 U.S.C. § 1182(h), which prevents the Attorney General from
    
    granting a waiver of inadmissibility to an individual “who has previously been
    
    admitted to the United States as an alien lawfully admitted for permanent
    
    residence,” applies to those who did not enter as LPRs, but instead adjusted to
    
    LPR status after entry into the United States.
    
          We hold that Mr. Obregon’s conviction for possession of stolen vehicles, in
    
    violation of Okla. Stat. tit. 47, § 4–103, is categorically a crime involving moral
    
    turpitude. However, under our court’s decision in Medina-Rosales v. Holder, 
    778 F.3d 1140
     (10th Cir. 2015), and the BIA’s decision in Matter of J-H-J-, 26 I. &
    
    N. Dec. 563 (BIA 2015), the § 1182(h) bar only applies to aliens who lawfully
    
    enter the United States as LPRs, and not those, like Mr. Obregon, who adjust to
    
    that immigration status after entering the country.
    
    
          7
                  While 8 U.S.C. § 1252(a)(2)(C) generally divests courts of
    jurisdiction over cases involving aliens convicted of crimes involving moral
    turpitude, and § 1252(a)(2)(B)(i) bars judicial review of denials of certain forms
    of discretionary relief, we may nevertheless consider constitutional claims and
    questions of law under § 1252(a)(2)(D). Because Mr. Obregon’s claims turn on
    purely legal determinations, we retain jurisdiction. See Rodriguez-Heredia v.
    Holder, 
    639 F.3d 1264
    , 1267 (10th Cir. 2011) (“Whether a conviction constitutes
    a crime involving moral turpitude is a question of law . . . .”); Diallo v. Gonzales,
    
    447 F.3d 1274
    , 1282 (10th Cir. 2006) (construing § 1252(a)(2)(D) to cover
    questions of statutory construction).
    
                                              6
                                              A
    
          The question of whether a criminal conviction constitutes a crime involving
    
    moral turpitude is a question of law, which we review de novo. Rodriguez-
    
    Heredia v. Holder, 
    639 F.3d 1264
    , 1267 (10th Cir. 2011). We “owe[] no
    
    deference to [the BIA’s] interpretation of the substance of the state-law offense at
    
    issue.” Efagene v. Holder, 
    642 F.3d 918
    , 921 (10th Cir. 2011). However, if a
    
    provision of the Immigration and Nationality Act (“INA”) “is arguably subject to
    
    differing interpretations, we will defer to the BIA’s interpretation provided it is
    
    reasonable.” Tapia Garcia v. INS, 
    237 F.3d 1216
    , 1220–21 (10th Cir. 2001); see
    
    also Rodas-Orellana v. Holder, 
    780 F.3d 982
    , 990 (10th Cir. 2015) (“‘[W]e
    
    review the BIA’s legal decisions de novo,’ but we defer to the BIA’s
    
    interpretation of ambiguous provisions of the INA, and must accept the BIA’s
    
    interpretation if it is reasonable.” (alteration in original) (quoting Rivera-
    
    Barrientos v. Holder, 
    666 F.3d 641
    , 645 (10th Cir. 2012))).
    
          The phrase “crime involving moral turpitude” is not defined in the INA;
    
    instead, its contours have been shaped through interpretation and application by
    
    the Attorney General, the Board, and federal courts. It is “perhaps the
    
    quintessential example of an ambiguous phrase.” Marmolejo-Campos v. Holder,
    
    
    558 F.3d 903
    , 909 (9th Cir. 2009) (en banc); see also Michel v. INS, 
    206 F.3d 253
    , 263 (2d Cir. 2000) (“[N]othing in the statute or its legislative history informs
    
    our understanding of the term ‘moral turpitude[]’ . . . .”). We have defined the
    
                                               7
    concept only very generally as “reach[ing] conduct that is inherently wrong, or
    
    malum in se, rather than conduct deemed wrong only because of a statutory
    
    proscription, malum prohibitum.” Efagene, 642 F.3d at 921; see also Wittgenstein
    
    v. INS, 
    124 F.3d 1244
    , 1246 (10th Cir. 1997) (“Moral turpitude refers ‘to conduct
    
    which is inherently base, vile, or depraved, contrary to the accepted rules of
    
    morality . . . .’” (quoting Matter of Flores, 17 I. & N. Dec. 225, 227 (BIA
    
    1980))). In light of the nebulousness of “moral turpitude,” we defer to the BIA’s
    
    interpretation of the term, as long as it reflects a “reasonable policy choice for the
    
    agency to make.” Efagene, 642 F.3d at 921 (quoting Chevron, U.S.A., Inc. v. Nat.
    
    Res. Def. Council, Inc., 
    467 U.S. 837
    , 845 (1984)); accord Rodas-Orellana, 780
    
    F.3d at 990.
    
                                               1
    
          “[C]orrupt scienter is the touchstone of moral turpitude.” Michel, 206 F.3d
    
    at 263. Here, the parties disagree over what the requisite scienter is for the
    
    receipt or possession of stolen goods to qualify as a crime involving moral
    
    turpitude. Mr. Obregon argues that there must be intent to permanently deprive,
    
    while the government claims that knowledge that the goods are stolen is
    
    sufficient.
    
          BIA precedent on this question strongly suggests that receiving or
    
    possessing stolen goods, with knowledge that the goods are stolen, implicates
    
    moral turpitude. See, e.g., Matter of Salvail, 17 I. & N. Dec. 19, 20 (BIA 1979)
    
                                               8
    (“Conviction under [a] statute [criminalizing possession of stolen goods] is a
    
    conviction for a crime involving moral turpitude, as it specifically requires
    
    knowledge of the stolen nature of the goods.”); Matter of Patel, 15 I. & N. Dec.
    
    212, 213 (BIA 1975) (“The California statute involved here requires knowledge
    
    that the goods were stolen; therefore, it involves moral turpitude.”), overruled on
    
    other grounds by Matter of Castro, 19 I. & N. Dec. 692 (BIA 1988); Matter of
    
    Z-----, 7 I. & N. Dec. 253, 255–56 (BIA 1956) (holding that the crime under
    
    Connecticut law of “receiv[ing] and conceal[ing] any stolen goods or articles,
    
    knowing them to be stolen” involves moral turpitude). Indeed, on at least one
    
    occasion, the Board has found that a statute punishing “negligent receipt of
    
    [stolen] property” was not a crime involving moral turpitude because it punished
    
    more than the knowing receipt of stolen goods. Matter of K-----, 2 I. & N. Dec.
    
    90, 91 (BIA 1944).
    
          Although our court has not addressed this issue, many of our sister circuits
    
    have also reached the conclusion that the knowing receipt or possession of stolen
    
    goods constitutes a crime involving moral turpitude. See, e.g., Hashish v.
    
    Gonzales, 
    442 F.3d 572
    , 576 n.4 (7th Cir. 2006) (“[R]eceiving stolen property
    
    requires the same state of mind, ‘knowingly,’ . . . and has been recognized as a
    
    crime of moral turpitude.”); De Leon-Reynoso v. Ashcroft, 
    293 F.3d 633
    , 637 (3d
    
    Cir. 2002) (“[K]nowingly possessing stolen goods is a crime of moral turpitude
    
    
    
    
                                              9
    . . . .”); Michel, 206 F.3d at 263 (“[W]e conclude that all violations of [a New
    
    York statute criminalizing possession of stolen property] are, by their nature,
    
    morally turpitudinous because knowledge is a requisite element . . . .”); United
    
    States v. Castro, 
    26 F.3d 557
    , 558 n.1 (5th Cir. 1994) (“Convictions for
    
    transporting and/or receiving stolen property with knowledge that such property is
    
    stolen constitute crimes of ‘moral turpitude.’”); Okoroha v. INS, 
    715 F.2d 380
    ,
    
    382 (8th Cir. 1983) (deferring to the BIA’s decision that possession of stolen mail
    
    constituted a crime involving moral turpitude “because knowledge that the article
    
    of mail had been stolen was an essential element of the offense”); see also
    
    Machado-Zuniga v. U.S. Att’y Gen., 564 F. App’x 982, 986 (11th Cir. 2014)
    
    (unpublished table decision) (per curiam) (holding that transportation of stolen
    
    property “once [an individual] knows it is stolen is an affirmative act of dishonest
    
    behavior” that constitutes a crime involving moral turpitude).
    
                                              2
    
          Mr. Obregon points out that the Ninth Circuit has diverged from this
    
    pattern, and instead has held that a conviction for receipt of stolen property can
    
    only constitute a crime of moral turpitude if the statute requires proof of intent to
    
    permanently deprive the original owner. See Castillo-Cruz v. Holder, 
    581 F.3d 1154
     (9th Cir. 2009). With due respect, we are not persuaded by the Ninth
    
    Circuit’s analysis.
    
    
    
    
                                             10
          The Castillo-Cruz court drew support for an intent-to-deprive element from
    
    a distinct line of BIA precedent holding that “a conviction for theft is considered
    
    to involve moral turpitude only when a permanent taking is intended.” Matter of
    
    Grazley, 14 I. & N. Dec. 330, 333 (BIA 1973) (emphasis added); see Castillo-
    
    Cruz, 581 F.3d at 1159 (citing, inter alia, Grazley, 14 I. & N. Dec. at 333, In re
    
    Jurado-Delgado, 24 I. & N. Dec. 29, 33 (BIA 2006), and Matter of P-----, 2 I. &
    
    N. Dec. 887 (BIA 1947)). Those cases involve statutes that punished conduct
    
    closer to larceny, and do not shed light on the necessary scienter for the receipt or
    
    possession of stolen property to be morally turpitudinous. See, e.g., Jurado-
    
    Delgado, 24 I. & N. Dec. at 33 (involving a Pennsylvania statute criminalizing
    
    retail theft, which required proof that the defendant “took merchandise offered for
    
    sale by a store without paying for it and with the intention of depriving the store
    
    owner of the goods” (emphasis added)); Grazley, 14 I. & N. Dec. at 332
    
    (involving a Canadian statute stating that “[e]very one commits theft who
    
    fraudulently and without colour of right takes, or fraudulently and without colour
    
    of right converts” the property of another (emphases added)); Matter of P-----, 2
    
    I. & N. Dec. at 887 (involving “the offense of breaking and entering and theft”).
    
          As even the Ninth Circuit has acknowledged, the most relevant
    
    precedents—i.e., those involving convictions for the receipt or possession of
    
    stolen goods—require only knowledge that the goods were stolen. See Castillo-
    
    Cruz, 581 F.3d at 1159–60, 1159 n.7. The court attempted to distinguish these
    
                                              11
    precedents by observing that the BIA has not expressly found a conviction for the
    
    receipt of stolen goods to constitute a crime involving moral turpitude where the
    
    alien “acted with . . . knowledge, but not with the intent to deprive the owner of
    
    property permanently.” Id. at 1160. However, the BIA has, at least implicitly,
    
    held just that. In both Matter of Salvail and Matter of Patel, for example, the fact
    
    that the state statute criminalized knowing possession of stolen goods was enough
    
    to establish a crime involving moral turpitude. Salvail, 17 I. & N. Dec. at 20;
    
    Patel, 15 I. & N. Dec. at 213. That the BIA did not inquire further into the
    
    aliens’ intentions regarding the stolen property suggests that the existence of a
    
    permanent intent to deprive, or a lack thereof, is not relevant to the analysis.
    
          Thus, the weight of apposite caselaw from the BIA and our sister circuits
    
    supports the view that knowing the goods to be stolen, alone, is sufficient to
    
    render an offense a crime of moral turpitude.
    
                                               3
    
          We turn now to the question of whether knowledge is the required mens rea
    
    for the specific statutes under which Mr. Obregon was convicted. Because the
    
    one-judge BIA decision issued in Mr. Obregon’s case only addressed his
    
    convictions for possession of stolen vehicles and receipt of stolen property, the
    
    scope of our inquiry ordinarily would be confined to these two offenses. See
    
    Uanreroro v. Gonzales, 
    443 F.3d 1197
    , 1204 (10th Cir. 2006) (holding that where
    
    a “single BIA member . . . decide[s] the merits of the appeal by himself and
    
                                              12
    issue[s] ‘a brief order,’” “we will not affirm on grounds raised in the IJ decision
    
    unless they are relied upon by the BIA in its affirmance” (quoting Cruz-Funez v.
    
    Gonzales, 
    406 F.3d 1187
    , 1190 (10th Cir. 2005))). Ultimately, because we affirm
    
    the agency’s decision that Mr. Obregon was convicted of a crime involving moral
    
    turpitude based on his stolen-vehicle conviction, we need not (and thus do not)
    
    reach his conviction for receipt of stolen property.
    
          “To determine if a particular conviction under state law meets the
    
    definition of an offense for which a noncitizen may be removed under the INA,
    
    the elements of the state-law offense are . . . analyzed using the categorical
    
    approach . . . .” Efagene, 642 F.3d at 921. Mr. Obregon’s actual conduct is
    
    irrelevant to this analysis; we “presume that the conviction ‘rested upon [nothing]
    
    more than the least of th[e] acts’ criminalized [by the statute], and then determine
    
    whether even those acts are encompassed by the generic federal offense.”
    
    Moncrieffe v. Holder, --- U.S. ----, 
    133 S. Ct. 1678
    , 1684 (2013) (first and second
    
    alterations in original) (quoting Johnson v. United States, 
    559 U.S. 133
    , 137
    
    (2010)); accord Ibarra v. Holder, 
    736 F.3d 903
    , 907 (10th Cir. 2013).
    
          In the immigration context, as in diversity cases, we follow the decisions of
    
    the state’s highest court 8 in order to determine the minimum conduct proscribed
    
    by the relevant criminal statute; where that court has not interpreted the
    
          8
                  The Oklahoma Court of Criminal Appeals (“OCCA”) is “Oklahoma’s
    court of last resort for criminal cases.” Pierce v. Gilchrist, 
    359 F.3d 1279
    , 1283
    (10th Cir. 2004).
    
                                              13
    provision, however, we must predict how it would rule on the issue. See Castillo
    
    v. Holder, 
    776 F.3d 262
    , 268 n.3 (4th Cir. 2015); see also Ibarra, 736 F.3d at
    
    913–15, 919–21 (looking to both state statutes and state court decisions
    
    interpreting those statutes in determining the elements of the crime of child
    
    abuse); Efagene, 642 F.3d at 923–24 (referring to Colorado courts’
    
    characterization of the state’s sex offender registration statute in deciding whether
    
    a violation of the statute was a crime involving moral turpitude); cf. Wade v.
    
    EMCASCO Ins. Co., 
    483 F.3d 657
    , 665–66 (10th Cir. 2007) (stating, in a diversity
    
    action, that a “federal court must follow the most recent decisions of the state’s
    
    highest court,” but that if “no controlling state decision exists,” the court “must
    
    attempt to predict what the state’s highest court would do” (quoting Wankier v.
    
    Crown Equip. Corp., 
    353 F.3d 862
    , 866 (10th Cir. 2003))).
    
          Felony possession of a stolen vehicle, under Oklahoma law, requires proof
    
    of the following elements: “(1) a person not entitled to the possession of a
    
    vehicle; (2) who receives, possesses, conceals, sells or disposes of it; (3) knowing
    
    it to be stolen or converted under circumstances constituting a crime.” F.D.H. v.
    
    State, 
    734 P.2d 308
    , 309 (Okla. Crim. App. 1987) (emphasis added); see Okla.
    
    Stat. tit. 47, § 4–103; Okla. Uniform Jury Instructions-Crim. (OUJI-CR) § 5-117
    
    (listing as an element “knowing [the vehicle] was stolen” or “knowing it was
    
    converted under” circumstances constituting a crime). Because knowledge is the
    
    mens rea for the crime of possession of a stolen vehicle, we may conclude that
    
                                              14
    “the minimum conduct criminalized by the [Oklahoma] statute,” Moncrieffe, 133
    
    S. Ct. at 1684, qualifies as morally turpitudinous under 8 U.S.C. §
    
    1227(a)(2)(A)(i).
    
          To be sure, we recognize that, contrary to the overwhelming weight of
    
    Oklahoma authority, in one instance, the Oklahoma Court of Criminal Appeals
    
    (“OCCA”) has held that “[i]t is sufficient to prove that the accused had reasonable
    
    cause to believe” the vehicle was stolen in order to convict under § 4–103.
    
    Anderson v. State, 
    704 P.2d 499
    , 502 (Okla. Crim. App. 1985) (quoting Fields v.
    
    State, 
    666 P.2d 1301
    , 1303 (Okla. Crim. App. 1983)). However, Mr. Obregon has
    
    not cited Anderson to us, much less made a cognizable argument for why
    
    Anderson represents the state of Oklahoma law regarding the necessary mens rea
    
    for the stolen-vehicle offense. Therefore, we deem—through a proper exercise of
    
    our discretion—any Anderson-based argument to be waived. See, e.g., United
    
    States v. Ibarra-Diaz, 
    805 F.3d 908
    , 933 (10th Cir. 2015) (“[W]e note that Mr.
    
    Ibarra–Diaz has waived any challenge to his conviction as a principal by failing
    
    to raise or brief the issue.”); Cahill v. Am. Family Mut. Ins. Co., 
    610 F.3d 1235
    ,
    
    1238 (10th Cir. 2010) (“[W]e have no interest in denying relief to [appellant] on
    
    technical grounds. But it is not our role to serve as his lawyer. We will not
    
    construct arguments for him out of isolated sentences in his briefs. Nor will we
    
    fill the gaps in undeveloped arguments unsupported by citations to relevant
    
    
    
    
                                             15
    authority.”); see also Warner v. Patterson, 534 F. App’x 785, 787 (10th Cir.
    
    2013) (unpublished table decision) (collecting cases). 9
    
          9
                 Even were we inclined to consider such an argument on the merits,
    we would initially observe that a later decision from the same court (i.e., the
    OCCA)—that is, F.D.H.—only lists, as a mens rea element, knowledge of the
    vehicle’s stolen nature, and does not suggest that “a reasonable cause to believe”
    would suffice. See 734 P.2d at 309. And, when there is an apparent conflict
    between two of its decisions, the OCCA has stated that “the later opinion[] [is]
    controlling, and must be held and construed to overrule” prior inconsistent
    decisions. Tittle v. State, 
    280 P. 865
    , 868 (Okla. Crim. App. 1929); accord Roe v.
    State, 
    191 P. 1048
    , 1052 (Okla. Crim. App. 1920). Thus, it appears likely that
    Anderson has been overruled by the OCCA’s subsequent decision in F.D.H.
    
           In any event, we would not need to decide whether F.D.H. overruled
    Anderson because we would conclude more generally that Anderson does not
    accurately reflect current Oklahoma law. In reaching its position that a
    “reasonable cause to believe” could support a conviction under § 4–103,
    Anderson relied on Fields. See 704 P.2d at 502. But Fields addressed a different
    statute, Okla. Stat. tit. 21, § 1713, which criminalizes the receipt of stolen
    property. Fields, 666 P.2d at 1302. And unlike § 4–103, which only refers to
    “knowing,” § 1713 specifically contemplates the receipt of stolen property
    “knowing or having reasonable cause to believe” it to be stolen. Okla. Stat. tit.
    21, § 1713. See generally Whirlpool Corp. v. Henry, 
    110 P.3d 83
    , 84 (Okla.
    Crim. App. 2005) (“We look at the plain meaning of the statutory language.”).
    Oklahoma’s uniform jury instructions maintain this distinction. Compare OUJI-
    CR § 5-117 (listing “knowing” as the requisite scienter for possession of a stolen
    vehicle), with id. § 5-111 (including “knowing” and “reasonably should have
    known” in the instruction for receipt of stolen property). And the uniform jury
    instructions have often guided both the OCCA and our court in defining the
    bounds of Oklahoma criminal law. See, e.g., United States v. Trent, 
    767 F.3d 1046
    , 1062 (10th Cir. 2014); Young v. Sirmons, 
    486 F.3d 655
    , 672 n.8 (10th Cir.
    2007); Townsend v. State, 
    144 P.3d 170
    , 171 (Okla. Crim. App. 2006); Brown v.
    State, 
    777 P.2d 1355
    , 1357 (Okla. Crim. App. 1989); accord Morales-Garcia v.
    Holder, 
    567 F.3d 1058
    , 1063 (9th Cir. 2009) (referring to California’s uniform
    jury instructions in interpreting a state criminal statute). In sum, all relevant
    authorities apart from Anderson—viz., the statute’s plain language, the state’s
    uniform jury instructions, and a later decision of the OCCA—indicate that
    “knowledge” is the necessary scienter under § 4–103. Thus, even were we to
                                                                             (continued...)
    
                                              16
          In order to avoid this result, Mr. Obregon claims that mere knowledge
    
    cannot be a sufficiently “vile or depraved” mental state because an individual
    
    could be prosecuted under § 4–103 if he received a stolen car, knowing it to be
    
    stolen, but with the noble intent of returning it to its rightful owner. Yet his
    
    “application of legal imagination to [§ 4–103’s] language” will not persuade us
    
    without “a realistic probability . . . that [Oklahoma] would apply [the] statute” in
    
    such a manner. Gonzales v. Duenas-Alvarez, 
    549 U.S. 183
    , 193 (2007). Given
    
    that Mr. Obregon does not cite any cases that bear out his fears—and we have not
    
    located any—he has not carried his burden of showing an actual risk that
    
    Oklahoma would prosecute his hypothetical Good Samaritan. See id. (“[H]e must
    
    at least point to his own case or other cases in which the state courts in fact did
    
    apply the statute in the special (nongeneric) manner for which he argues.”).
    
          Thus, Mr. Obregon’s conviction for possession of a stolen vehicle under
    
    Okla. Stat. tit. 47, § 4–103, is categorically a crime of moral turpitude, and we
    
    need not go further in order to affirm the BIA’s conclusion that he is removable.
    
                                              B
    
          Mr. Obregon next claims that even if he is removable, he should
    
    nevertheless have been afforded the opportunity to apply for a waiver under 8
    
    
          9
            (...continued)
    reach the merits of an Anderson-based argument, we would not take Anderson, “a
    single, possibly aberrant state case[,] and elevat[e] it to state law.” Nunez v.
    Holder, 
    594 F.3d 1124
    , 1141 (9th Cir. 2010) (Bybee, J., dissenting).
    
                                              17
    U.S.C. § 1182(h). Under controlling precedent from our court and the BIA’s
    
    recent decision in Matter of J-H-J-, he is correct.
    
          Section 1182(h) authorizes the Attorney General, in her discretion, to allow
    
    certain convicted aliens to remain in the United States, but prohibits her from
    
    granting such a waiver to “an alien who has previously been admitted to the
    
    United States as an alien lawfully admitted for permanent residence” unless
    
    certain narrow conditions are met. 8 U.S.C. § 1182(h). Mr. Obregon claims that
    
    the statute precludes waivers only for aliens who entered the United States as
    
    lawful permanent residents, and does not apply to aliens like him who adjust their
    
    status to that of lawful permanent residents after entering the country. The
    
    government, in its briefing and at oral argument, countered that the language of §
    
    1182(h) is ambiguous, and as such, we should defer to the agency’s decisions in
    
    Matter of Koljenovic, 25 I. & N. Dec. 219 (BIA 2010), and Matter of Rodriguez,
    
    25 I. & N. Dec. 784 (BIA 2012), which construed “admitted” in § 1182(h) to
    
    include those who have adjusted their status after entry. 10
    
          The government has now withdrawn its argument in light of two decisions
    
    announced subsequent to the parties’ briefing and oral argument in this case. 11
    
          10
                The IJ and the BIA considered themselves bound by Koljenovic and
    Rodriguez in the absence of Tenth Circuit precedent to the contrary.
          11
                 Specifically, on May 12, 2015, the government sent us a letter,
    pursuant to Federal Rule of Appellate Procedure 28(j), notifying us of the BIA’s
    decision in J-H-J-, and informing us that it was withdrawing its argument
                                                                         (continued...)
    
                                              18
    First, in Medina-Rosales, we held that “only persons who obtained LPR status
    
    before or when they entered the United States are barred from seeking a waiver
    
    under § 1182(h).” 778 F.3d at 1145. Central to our interpretation of the waiver
    
    bar was the “long-standing canon of statutory interpretation[] [that] one should
    
    avoid construing a statute so as to render statutory language superfluous.”
    
    McCloy v. U.S. Dep’t of Agric., 
    351 F.3d 447
    , 451 (10th Cir. 2003); see Medina-
    
    Rosales, 778 F.3d at 1145. Specifically, we observed that “admitted” and
    
    “lawfully admitted for permanent residence” are separately defined terms in the
    
    immigration statute. Medina-Rosales, 778 F.3d at 1144–45. Compare 8 U.S.C. §
    
    1101(a)(13)(A) (defining “admitted”), with id. § 1101(a)(20) (defining “lawfully
    
    admitted for permanent residence”). While “admitted” “refers expressly to entry
    
    into the United States,” Medina-Rosales, 778 F.3d at 1144–45 (quoting Negrete-
    
    Ramirez v. Holder, 
    741 F.3d 1047
    , 1051 (9th Cir. 2014)), “lawfully admitted for
    
    permanent residence” refers to “the status of having been lawfully accorded the
    
    privilege of residing permanently in the United States,” id. at 1145 (quoting 8
    
    U.S.C. § 1101(a)(20)), and “encompasses all LPRs, regardless of whether they
    
    obtained that status” before or after entering the country, id. (quoting Negrete-
    
    Ramirez, 741 F.3d at 1053). Thus, “[i]f the term ‘admitted’ in the phrase
    
    ‘previously been admitted’ included post-entry adjustment . . . the first section of
    
    
          11
            (...continued)
    regarding the interpretation of § 1182(h).
    
                                             19
    the statutory language, ‘an alien who has previously been admitted to the United
    
    States as,’ would be superfluous because the definition of ‘lawfully admitted for
    
    permanent residence’ encompasses adjustment of status.” Id. at 1145 (quoting
    
    Negrete-Ramirez, 741 F.3d at 1053–54). 12
    
          Second, in Matter of J-H-J-, the BIA withdrew its opinions in Koljenovic
    
    and Rodriguez, and “accede[d] to the clear majority view” taken by nine
    
    circuits, 13 including our own—namely, that the plain language of § 1182(h)
    
    “precludes aliens from establishing eligibility for relief only if they lawfully
    
          12
                  We circumspectly observe that in Medina-Rosales, we did not adopt
    a per se rule that “admission” only means “lawful entry” wherever it is used in
    the immigration statute. Instead, our analysis was driven by the need to give
    effect to both “admitted” and “lawfully admitted . . . for permanent residence,” as
    used side by side in § 1182(h). See Medina-Rosales, 778 F.3d at 1145 (“The fact
    that both ‘admitted’ and ‘lawfully admitted to the United States for permanent
    residence’ are used together indicates that Congress intended that they serve
    different purposes.”). The phrase “admitted . . . as an alien lawfully admitted for
    permanent residence” appears to be unique to § 1182(h). See Leiba v. Holder,
    
    699 F.3d 346
    , 355 (4th Cir. 2012) (“Congress has not used the terms ‘admitted’
    and ‘lawfully admitted . . . for permanent residence’ together often in the INA
    and, indeed, the phrase ‘admitted to the United States as an alien lawfully
    admitted for permanent residence’ which appears in §[1182](h), appears nowhere
    else in the Code.”). And thus the scope of our holding in Medina-Rosales should
    naturally be read with this limited statutory reference point in mind.
          13
                 Medina-Rosales, 778 F.3d. at 1145; Husic v. Holder, 
    776 F.3d 59
     (2d
    Cir. 2015); Stanovsek v. Holder, 
    768 F.3d 515
     (6th Cir. 2014); Negrete-Ramirez,
    741 F.3d at 1053–54; Papazoglou v. Holder, 
    725 F.3d 790
     (7th Cir. 2013); Leiba,
    
    699 F.3d 346
    ; Hanif v. U.S. Att’y Gen., 
    694 F.3d 479
     (3d Cir. 2012); Lanier v.
    U.S. Att’y Gen., 
    631 F.3d 1363
     (11th Cir. 2011); Martinez v. Mukasey, 
    519 F.3d 532
     (5th Cir. 2008). But see Roberts v. Holder, 
    745 F.3d 928
    , 932 (8th Cir. 2014)
    (per curiam) (concluding that Ҥ 1182(h) is ambiguous as to the meaning of
    ‘previously been admitted as an alien lawfully admitted for permanent
    residence’”).
    
                                              20
    entered the United States as permanent residents” and not if they adjusted to
    
    lawful permanent residence status. 26 I. & N. Dec. at 564.
    
          These two decisions clearly foreclose the position that Mr. Obregon is
    
    ineligible for relief under § 1182(h), and the government has prudently withdrawn
    
    this argument. Thus, bound by our controlling decision in Medina-Rosales—and
    
    bolstered by consistent holdings from the vast majority of our sister circuits and
    
    the BIA’s most recent interpretation of § 1182(h) in Matter of J-H-J-—we
    
    conclude that Mr. Obregon, as an alien who adjusted to LPR status after entry into
    
    the United States, should have been afforded the opportunity to apply for a
    
    discretionary waiver under 8 U.S.C. § 1182(h).
    
                                             III
    
          Although Mr. Obregon is removable for having committed a crime
    
    involving moral turpitude—namely, knowing possession of a stolen vehicle—the
    
    BIA erred in finding that he was statutorily ineligible to apply for a waiver under
    
    § 1182(h). Thus, we DENY in part and GRANT in part Mr. Obregon’s petition
    
    for review and REMAND the matter to the Board for further proceedings
    
    consistent with this opinion.
    
    
    
    
                                             21