Cerros-Gutierrez v. Barr ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 15, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
ARTURO CERROS-GUTIERREZ, a/k/a
Arturo Cerros,
Petitioner,
v. No. 18-9555
(Petition for Review)
WILLIAM P. BARR, United States
Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, MATHESON, and MORITZ, Circuit Judges.
_________________________________
Arturo Cerros-Gutierrez, a native and citizen of Mexico, seeks review of the
Board of Immigration Appeals’ (BIA) determination that he is removable because he
committed an aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii). Exercising
jurisdiction under 8 U.S.C. § 1252(a)(1), (2)(D), we deny review.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I. BACKGROUND
The United States admitted Mr. Cerros-Gutierrez as a lawful permanent
resident in 1988. Ten years later, he pled guilty to residential burglary under
Ark. Code Ann. § 5-39-201(a)(1) (1997). An Arkansas court sentenced him to five
years in prison.1 In 2005, Mr. Cerros-Gutierrez pled guilty to battery upon a peace
officer under N.M. Stat. Ann. § 30-22-24.
The Department of Homeland Security (“DHS”) commenced removal
proceedings in 2017, alleging that these convictions support removal under 8 U.S.C.
§ 1227(a)(2)(A)(ii), (iii).2 Those sections provide that if an alien commits two or
more crimes involving moral turpitude, or commits an aggravated felony, the alien is
deportable. Mr. Cerros-Gutierrez sought termination of the removal proceedings,
arguing that his prior crimes (1) did not involve the moral turpitude required by
§ 1227(a)(2)(A)(ii), and (2) were not aggravated felonies within the meaning of
§ 1227(a)(2)(A)(iii).
The immigration judge (IJ) initially ruled in favor of Mr. Cerros-Gutierrez.
But the IJ reconsidered his initial ruling and ordered removal based solely on his
conclusion that Mr. Cerros-Gutierrez’s Arkansas burglary was an aggravated felony
1
The Arkansas court suspended imposition of the sentence for two years.
2
The initial notice to appear sought removal under only § 1227(a)(2)(A)(iii)
due to the Arkansas burglary conviction. DHS later added charges that sought
removal under (1) § 1227(a)(2)(A)(ii) because Cerros-Gutierrez had allegedly been
convicted of two crimes involving moral turpitude, and (2) § 1227(a)(2)(A)(iii) due
to the New Mexico battery conviction.
2
under § 1227(a)(2)(A)(iii). Mr. Cerros-Gutierrez appealed this decision to the BIA,
which dismissed the appeal.
II. DISCUSSION
A. Legal Background
We review de novo the BIA’s legal determination that Mr. Cerros-Gutierrez’s
burglary conviction qualifies as an aggravated felony. See Herrera-Castillo v.
Holder, 573 F.3d 1004, 1007 (10th Cir. 2009).
“The Immigration and Nationality Act (INA), 66 Stat. 163, 8 U.S.C. § 1101et seq., provides that a noncitizen who has been convicted of an ‘aggravated felony’
may be deported from this country.” Moncrieffe v. Holder, 569 U.S. 184, 187
(2013). The term “aggravated felony” includes a “burglary offense for which the
term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(G). “When the
Government alleges that a state conviction qualifies as an ‘aggravated felony’ under
the INA, we generally employ a ‘categorical approach’ to determine whether the state
offense is comparable to an offense listed in the INA.” Moncrieffe, 569 U.S. at 190.
“Under this approach we look not to the facts of the particular prior case, but instead
to whether the state statute defining the crime of conviction categorically fits within
the generic federal definition of a corresponding aggravated felony.” Id. (internal
quotation marks omitted).
The generic federal definition of burglary is “‘an unlawful or unprivileged
entry into, or remaining in, a building or other structure, with intent to commit a
3
crime.’” United States v. Stitt, 139 S. Ct. 399, 405–06 (2018) (quoting Taylor v.
United States, 495 U.S. 575, 598 (1990)).
The Arkansas statute underlying Mr. Cerros-Gutierrez’s conviction reads as
follows: “A person commits residential burglary if he enters or remains unlawfully
in a residential occupiable structure of another person with the purpose of committing
therein any offense punishable by imprisonment.” Ark. Code Ann. § 5-39-201(a)(1)
(1997).
B. Analysis
Comparing the language of the Arkansas statute to the generic federal
definition of burglary, we conclude the Arkansas statute categorically fits within the
generic federal definition.
1. Unlawful Entry
Mr. Cerros-Gutierrez argues the Arkansas statute defines burglary more
broadly than the generic federal definition because the statute does not require an
illegal entry. He asserts the adverb “unlawfully” in § 5-39-201(a)(1) modifies only
the verb “remains,” and not the verb “enters,” so a person could commit residential
burglary by legally entering a residence with intent to commit a crime.
Mr. Cerros-Gutierrez’s argument runs counter to Arkansas statutory and
judicial authority. Arkansas Code Ann. § 5-39-101(4) (1997) states that the phrase
“‘[e]nter or remain unlawfully’ means to enter or remain in or upon premises when
not licensed or privileged to do so.” And the Arkansas Supreme Court has confirmed
that “Section 5-39-201 encompasses two separate and distinct elements, the first
4
being the illegal entering of the residence and then, second, having the purpose to
commit a felony in that residence.” Sherman v. State, 448 S.W.3d 704, 711
(Ark. 2014) (emphasis added).3 Mr. Cerros-Gutierrez’s argument thus lacks merit.
2. Residential Occupiable Structure
Mr. Cerros-Gutierrez argued to the IJ and to the BIA that § 5-39-201(a)(1)
covers more conduct than the generic federal burglary definition due to its
proscription of entry into “residential occupiable structure[s].” He reasoned that
because a “residential occupiable structure” is defined in Ark. Code Ann. § 5-39-
101(1) (1997) to include a “vehicle,” Arkansas’ residential burglary statute goes
beyond the generic federal definition’s requirement that entry be into a “building” or
“other structure.”
Although Mr. Cerros-Gutierrez mentions this issue in his opening brief to this
court, he states that the “Court can pass on this issue,” noting that he raises it only “to
preserve it for further appeal if necessary.” Pet’r Br. at 12. He does not present an
argument, so we do not address this issue. See United States v. Williamson, 746 F.3d
987, 993 n.1 (10th Cir. 2014) (“We do not address arguments that are not raised, or
are inadequately presented, in an appellant’s opening brief.” (internal quotation
3
The Sherman court was interpreting the version of Ark. Code Ann.
§ 5-39-201(a)(1) that was in force in 2007. That version differs slightly from the
1997 version at issue here, but the difference is not material. The following shows
the changes that the 2007 version made to the 1997 version: “A person commits
residential burglary if he or she enters or remains unlawfully in a residential
occupiable structure of another person with the purpose of committing therein in the
residential occupiable structure any offense punishable by imprisonment.”
5
marks omitted)); Utah Envtl. Cong. v. Bosworth, 439 F.3d 1184, 1194 n.2 (10th Cir.
2006) (“An issue mentioned in a brief on appeal, but not addressed, is waived.”).
In any event, the Supreme Court recently rejected the argument that Ark. Code
Ann. § 5-39-201(a)(1) (1997) goes beyond the generic federal burglary definition just
because it criminalizes unlawful entry into certain types of vehicles. Stitt, 139 S. Ct.
at 407 (“[C]overage of vehicles designed or adapted for overnight use” does not
“take[] the statute outside the generic burglary definition.”).4
III. CONCLUSION
The petition for review is denied.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
4
The Court remanded the case for consideration of the appellant’s argument
that because § 5-39-201(a)(1) “might cover a car in which a homeless person
occasionally sleeps,” the “statute is too broad to count as generic burglary.” Id.
Cerros-Gutierrez did not make this argument to the IJ, to the BIA, or in his opening
brief. Accordingly, we will not consider it. See 8 U.S.C. § 1252(d)(1); Akinwunmi v.
INS, 194 F.3d 1340, 1341 (10th Cir. 1999) (per curiam) (“The failure to raise an issue
on appeal to the Board constitutes failure to exhaust administrative remedies with
respect to that question and deprives the Court of Appeals of jurisdiction to hear the
matter.” (internal quotation marks omitted)).
6