UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

MARIA ISABEL PEREZ-CASTRO, 

a/k/a Isabel Perez, 

 Petitioner, 

v. 

ERIC H. HOLDER, JR., 

United States Attorney General, 

 Respondent. 

No. 12-9579 

(Petition for Review)

 

ORDER AND JUDGMENT*

 

Before KELLY, Circuit Judge, PORFILIO, Senior Circuit Judge, and HOLMES, 

Circuit Judge. 

 

 

 Maria Isabel Perez-Castro is a native and citizen of Mexico who illegally 

entered the United States in 1996. She was arrested in Colorado and pleaded guilty 

to one count of attempted second degree burglary of a building or occupied structure 

under Colo. Rev. Stat. § 18-4-203(1). In removal proceedings she conceded that she 

 

* 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. 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 12, 2013

Elisabeth A. Shumaker 

Clerk of Court
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was inadmissible but sought cancellation of removal. To be eligible for cancellation, 

petitioner had to show, among other things, that she “ha[d] not been convicted of an 

offense under [8 U.S.C. §] 1182(a)(2),” 8 U.S.C. § 1229b(b)(1)(C), which includes “a 

crime involving moral turpitude (other than a purely political offense) or an attempt 

or conspiracy to commit such a crime,” id. § 1182(a)(2)(A)(i)(I). 

An immigration judge (IJ) denied petitioner’s application for cancellation of 

removal, reasoning that her conviction was a crime involving moral turpitude (CIMT) 

because it involved the attempted burglary of a dwelling, and the Board of 

Immigration Appeals (BIA) has held that “the conscious and overt act of unlawfully 

entering or remaining in an occupied dwelling with the intent to commit a crime” 

constitutes a CIMT, In re Louissant, 24 I. & N. Dec. 754, 758 (BIA 2009) (emphasis 

added). The BIA agreed, concluding that petitioner failed to meet her burden of 

showing that her conviction did not involve a dwelling.1

 Petitioner now seeks our 

review, contending that her conviction was not a CIMT because it did not involve the 

attempted burglary of a dwelling. We disagree and therefore deny the petition for 

review. 

Whether a conviction constitutes a CIMT is a question of law that we review 

de novo. Garcia v. Holder, 584 F.3d 1288, 1289 & n.2 (10th Cir. 2009). “Because a 

 

1

 The IJ determined that petitioner also was ineligible for cancellation because 

she had not shown the requisite hardship to a qualifying relative, see 8 U.S.C. 

§ 1229b(b)(1)(D), but the BIA based its decision solely on the CIMT ground and did 

not reach the hardship ground. 
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single member of the BIA decided [petitioner’s] appeal and issued a brief opinion, 

we review the BIA’s decision as the final agency determination and limit our review 

to issues specifically addressed therein.” Kechkar v. Gonzales, 500 F.3d 1080, 1083 

(10th Cir. 2007) (internal quotation marks omitted). 

“To determine whether a state conviction is a crime involving moral turpitude, 

we ordinarily employ the categorical approach.” Rodriguez-Heredia v. Holder, 

639 F.3d 1264, 1267 (10th Cir. 2011). “Under that approach, we are initially limited 

to considering the statutory definition of the crime, not the underlying factual 

circumstances of the crime.” Id. (ellipsis and internal quotation marks omitted). 

However, we use a modified categorical approach when the state statute has been 

used to convict offenders of offenses that do not constitute a CIMT. See id. at 1267, 

1269. Colorado has used Colo. Rev. Stat. § 18-4-203(1) to convict offenders of 

second degree burglary not involving a dwelling, which is defined by Colorado law 

as “a building which is used, intended to be used, or usually used by a person for 

habitation,” Colo. Rev. Stat. § 18-1-901(3)(g). See, e.g., People v. Moyer, 635 P.2d 

553, 554 (Colo. 1981) (fenced enclosure used as outdoor dog kennel); People v. 

Barefield, 804 P.2d 1342, 1344 (Colo. App. 1990) (county attorney’s office). 

Therefore, our analysis begins with the modified categorical approach. 

“Under the modified [categorical] approach, in a non-jury case such as this, we 

may consider the charging documents, the written plea agreement, the transcript of 

plea colloquy, and any explicit factual finding by the trial judge to which the 
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defendant assented,” as well as “a presentence report.” Rodriguez-Heredia, 639 F.3d 

at 1269 (brackets and internal quotation marks omitted). Here we have only the 

charging document and a computerized printout documenting petitioner’s 

conviction.2

 Petitioner pleaded guilty to an added count of an information charging 

that she, 

by engaging in conduct constituting a substantial step toward the 

commission of second degree burglary of a building, unlawfully, 

feloniously, and knowingly remained unlawfully after a lawful or 

unlawful entry into the building or occupied structure of Francisco 

Macias-Acevedo . . . with the intent to commit therein the crime of 

Harassment, in violation of section 18-4-203(1), and 18-2-101. 

 

Admin. R. at 203-04; see also id. at 535-38. The documentation of her conviction 

shows that she pleaded guilty to attempted second degree burglary of a building in 

violation of Colo. Rev. Stat. § 18-4-203(1), and the conviction is identified as a 

class 5 felony.3

 

2

 Petitioner complains that the IJ impermissibly considered the police report of 

the incident. We agree that this was improper under the BIA’s precedent. See In re 

Teixeira, 21 I. & N. Dec. 316, 319-20 (BIA 1996). But the BIA did not consider the 

police report or incorporate the IJ’s reasoning, and our review is limited to the 

reasons the BIA gave. See Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 

2006) (“As long as the BIA decision [in a single-member case] contains a discernible 

substantive discussion, . . . our review extends no further, unless it specifically 

incorporates or references an expanded version of the same reasoning [by the IJ].”). 

3

 Colo. Rev. Stat. § 18-4-203(1) provides that “[a] person commits second 

degree burglary, if the person knowingly breaks an entrance into, enters unlawfully 

in, or remains unlawfully after a lawful entry in a building or occupied structure with 

intent therein to commit a crime against another person or property.” The completed 

offense is a class 4 felony, see id. § 18-4-203(2), but attempted second degree 

burglary is a class 5 felony, see id. § 18-2-101(4). 
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Petitioner first argues that the Colorado statutory definitions of “building,” 

“occupied structure,” and “dwelling” are not synonymous. Colorado defines 

“building” as 

a structure which has the capacity to contain, and is designed for the 

shelter of, man, animals, or property, and includes a ship, trailer, 

sleeping car, airplane, or other vehicle or place adapted for overnight 

accommodations of persons or animals, or for carrying on of business 

therein, whether or not a person or animal is actually present. 

Colo. Rev. Stat. § 18-4-101(1). “Occupied structure” is defined as 

any area, place, facility, or enclosure which, for particular purposes, 

may be used by persons or animals upon occasion, whether or not 

included within the definition of “building” in subsection (1) of this 

section, and which is in fact occupied by a person or animal, and known 

by the defendant to be thus occupied at the time he acts in violation of 

one or more of sections 18-4-102 to 18-4-105. 

Id. § 18-4-101(2). And again, “dwelling” is defined as “a building which is used, 

intended to be used, or usually used by a person for habitation.” Id.

§ 18-1-901(3)(g). 

Petitioner claims that to be a dwelling, a building must be used for habitation, 

and the record of her conviction does not show that the building she attempted to 

burglarize was used for habitation. But this argument overlooks a critical factor—

that petitioner has the burden of proof to show that her conviction did not involve a 

dwelling. See 8 U.S.C. § 1229a(c)(4)(A)(i); Garcia, 584 F.3d at 1289-90. Parsing 

the statutory definitions, it is clear that although not all buildings and occupied 

structures are dwellings, all dwellings are buildings and occupied structures. Hence, 

petitioner’s reliance on the absence of the word “dwelling” from the record of her 
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conviction does not suffice to meet her burden of showing that her conviction did not

involve a dwelling. 

Petitioner next argues that the fact she was convicted of a class 5 felony 

precludes a finding that her offense involved a dwelling because attempted burglary 

of a dwelling under the relevant Colorado statutes is a more-serious class 4 felony. 

See id. §§ 18-2-101(4), 18-4-203(2)(a). But when a dwelling is involved in a 

burglary of a building or occupied structure, Colorado treats the increase in offense 

level as a sentencing enhancement, not an element of the offense. See People v. 

Garcia, 940 P.2d 357, 359-63 (Colo. 1997). Thus, the mere fact that the sentencing 

court did not impose the enhancement when accepting the plea agreement does not 

establish that petitioner’s conviction did not involve a dwelling. 

In her reply brief, petitioner also points out that the computerized 

documentation of her conviction shows that she was originally charged with second 

degree burglary of a dwelling under Colo. Rev. Stat. § 18-4-203(1) and (2)(a), the 

latter of which contains the sentencing enhancement when a dwelling is involved, but 

she was ultimately convicted of attempted second degree burglary under only 

§ 18-4-203(1). She contends that this lends support to her argument that she was not 

convicted of attempted burglary of a dwelling. However, she did not present this 

argument to the BIA, so we lack jurisdiction to consider it. See 8 U.S.C. 

§ 1252(d)(1) (setting forth exhaustion requirement); Rivera-Zurita v. INS, 946 F.2d 

118, 120 n.2 (10th Cir. 1991) (holding that issue exhaustion is jurisdictional and 
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review “does not extend to points an alien could have made before the [BIA] but did 

not”). Furthermore, “[w]e decline to consider arguments raised for the first time in a 

reply brief.” United States v. Murray, 82 F.3d 361, 363 n.3 (10th Cir. 1996). 

 The petition for review is denied. Petitioner’s application to proceed in forma 

pauperis is denied as moot since she has paid the filing fee. 

 Entered for the Court 

 Paul J. Kelly, Jr. 

 Circuit Judge