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Immigration Law

CA10 on CIMT, Burden of Proof: Lucio-Rayos v. Sessions

Lucio-Rayos v. Sessions, Nov. 14, 2017 - "The question presented in this petition for review is whether Petitioner Juan Alberto Lucio-Rayos’s municipal theft conviction qualifies as a crime involving moral turpitude (“CIMT”), which would make him ineligible for cancellation of removal. Lucio-Rayos was convicted under a divisible municipal code provision that sets forth several  different theft offenses, some of which qualify as CIMTs and some of which do not. Applying the modified categorical approach, it is not possible to tell which theft offense was the basis of Lucio-Rayos’s conviction. However, because it is Lucio-Rayos’s burden to establish his eligibility for cancellation of removal, he bears the brunt of this inconclusive record. We, therefore, uphold the Board of Immigration Appeals (“BIA”)’s determination that Lucio-Rayos has not shown that he is eligible for cancellation of removal. We also conclude that the immigration judge (“IJ”) did not deprive Lucio-Rayos of due process by refusing to recuse from hearing his case. Thus, having jurisdiction under 8 U.S.C. § 1252(a)(2)(D), we DENY Lucio-Rayos’s petition for review."