Obregon de Leon v. Holder

Filing

[10328849] Enforced in Part, Reversed in Part and Remanded. Terminated on the merits after oral hearing. Written, signed, published. Judges Holmes (authoring judge), Matheson and McHugh. Mandate to issue. [13-9601]

FILED
Appellate Case: 13-9601

Document: 01019543142

United States Court of Appeals
Date Filed: 12/22/2015 Circuit 1
Tenth Page:

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.

Appellate Case: 13-9601

Document: 01019543142

Date Filed: 12/22/2015

Page: 2

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

Appellate Case: 13-9601

Document: 01019543142

Date Filed: 12/22/2015

Page: 3

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

Appellate Case: 13-9601

Document: 01019543142

Date Filed: 12/22/2015

Page: 4

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

Appellate Case: 13-9601

Document: 01019543142

Date Filed: 12/22/2015

Page: 5

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

Appellate Case: 13-9601

Document: 01019543142

Date Filed: 12/22/2015

Page: 6

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

Appellate Case: 13-9601

Document: 01019543142

Date Filed: 12/22/2015

Page: 7

A
The question of whether a criminal conviction constitutes a crime involving
moral turpitude is a question of law, which we review de novo. RodriguezHeredia 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 RiveraBarrientos 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

Appellate Case: 13-9601

Document: 01019543142

Date Filed: 12/22/2015

Page: 8

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

Appellate Case: 13-9601

Document: 01019543142

Date Filed: 12/22/2015

Page: 9

(“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

Appellate Case: 13-9601

Document: 01019543142

Date Filed: 12/22/2015

Page: 10

. . . .”); 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

Appellate Case: 13-9601

Document: 01019543142

Date Filed: 12/22/2015

Page: 11

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 CastilloCruz, 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., JuradoDelgado, 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 CastilloCruz, 581 F.3d at 1159–60, 1159 n.7. The court attempted to distinguish these
11

Appellate Case: 13-9601

Document: 01019543142

Date Filed: 12/22/2015

Page: 12

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

Appellate Case: 13-9601

Document: 01019543142

Date Filed: 12/22/2015

Page: 13

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

Appellate Case: 13-9601

Document: 01019543142

Date Filed: 12/22/2015

Page: 14

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

Appellate Case: 13-9601

Document: 01019543142

Date Filed: 12/22/2015

Page: 15

“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

Appellate Case: 13-9601

Document: 01019543142

Date Filed: 12/22/2015

Page: 16

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 OUJICR § 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

Appellate Case: 13-9601

Document: 01019543142

Date Filed: 12/22/2015

Page: 17

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

Appellate Case: 13-9601

Document: 01019543142

Date Filed: 12/22/2015

Page: 18

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

Appellate Case: 13-9601

Document: 01019543142

Date Filed: 12/22/2015

Page: 19

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 MedinaRosales, 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 NegreteRamirez 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 NegreteRamirez, 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

Appellate Case: 13-9601

Document: 01019543142

Date Filed: 12/22/2015

Page: 20

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

Appellate Case: 13-9601

Document: 01019543142

Date Filed: 12/22/2015

Page: 21

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