UNITED STATES CO URT 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 nativ e and citizen of Mexico who illegally entered the United States in 1996. She wa s arrested in Colora do and pleaded guilty to one count of attempted second degree burgl ary of a building or occupied structure under Colo. Rev. Stat. § 18-4-203(1). In removal proceedings sh e conceded that she

* After examining the briefs and appellate record, this pane l 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve 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- 2 - was inadmissible but sought cancellation of re moval. To be eligib le for cancellation, petitioner had to show, among othe r 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 co mmit such a crime,” id. § 1182(a)(2)(A)(i)(I). An immigration judge (IJ) denied petiti oner’s application for cancellation of removal, reasoning that her conviction was a crime involving moral turpitude (CIMT) because it involved the at tempted burglary of a dwe lling, and the Board of Immigration Appeals (BIA) has held that “t he 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 di sagree 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 al so was ineligible fo r cancellation because she had not shown the requisite ha rdship to a qualifying relative, see 8 U.S.C. § 1229b(b)(1)(D), but the BIA based its d ecision solely on the CIMT ground and did not reach the hardship ground.- 3 - single member of the BIA d ecided [petitioner’s] appeal a nd 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) (interna l 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 ini tially limited to considering the statutory definition of the crime, not the underlying factual circumstances of the crime.” Id. (ellipsis and internal quot ation marks omitted). However, we use a modified categorical a pproach when the state statute has been used to convict offenders of offens es that do not cons titute 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 dwe lling, 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. St at. § 18-1-901(3)(g). See, e.g. , People v. Moyer , 635 P.2d 553, 554 (Colo. 1981) (fenced encl osure used as outdoor dog kennel); People v. Barefield , 804 P.2d 1342, 1344 (Colo. App. 1990) (county attorney’s office). Therefore, our analysis be gins with the modified categorical approach. “Under the modified [categor ical] approach, in a non-jury case such as this, we may consider the charging docu ments, the written plea agre ement, the transcript of plea colloquy, and any explicit factual fi nding by the trial judge to which the- 4 - defendant assented,” as well as “a presentence report.” Rodriguez-Heredia , 639 F.3d at 1269 (brackets and internal quotation ma rks omitted). Here we have only the charging document and a computerized printout documenting petitioner’s conviction. 2 Petitioner pleaded guilty to an a dded count of an information charging that she, by engaging in conduct constituti ng a substantial step toward the commission of second degree burgl ary 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 ther ein the crime of Harassment, in violation of sect ion 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 conv iction is identified as a class 5 felony. 3

2 Petitioner complains that the IJ impermissibly consid ered the police report of the incident. We agree that this was improper unde r the BIA’s precedent. See In re Teixeira , 21 I. & N. Dec. 316, 319-20 (BIA 19 96). But the BIA did not consider the police report or incorporate the IJ’s reas oning, 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 d ecision [in a single-member ca se] contains a discernible substantive discussion, . . . our review extends no furthe r, unless it specifically incorporates or references an expanded version of the same reasoning [by the IJ].”).
3 Colo. Rev. Stat. § 18-4-203(1) pr ovides that “[a] person commits second degree burglary, if the person knowingly br eaks an entrance into , enters unlawfully in, or remains unlawfully after a lawful entry in a build ing 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 a ttempted second degree burglary is a class 5 felony, see id. § 18-2-101(4).- 5 - 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 prope rty, and includes a ship, trailer, sleeping car, airplane, or other vehi cle or place adapted for overnight accommodations of persons or animal s, or for carrying on of business therein, whether or not a person or animal is actually present. Colo. Rev. Stat. § 18-4-101(1). “Occ upied structure” is defined as any area, place, facility, or enclosur e which, for particular purposes, may be used by persons or animal s upon occasion, whether or not included within the definition of “bu ilding” in subsection (1) of this section, and which is in fact occupied by a pe rson 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 bu ildings and occupied structures. Hence, petitioner’s reliance on the absence of the word “dwe lling” from the record of her- 6 - conviction does not suffice to meet her burden of showi ng that her conviction did not involve a dwelling. Petitioner next argues that the fact sh e 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 stat utes is a more-seri ous 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 structur e, Colorado treats th e increase in offense level as a sentencing e nhancement, not an element of the offense. See People v.
Garcia , 940 P.2d 357, 359-63 (Colo. 1997). T hus, the mere fact that the sentencing court did not impose the enhancement wh en accepting the plea agreement does not establish that petitioner’s convic tion did not involve a dwelling. In her reply brief, petitioner also points out that the computerized documentation of her convicti on shows that she was origin ally charged with second degree burglary of a dwelling under Colo. Re v. Stat. § 18-4-203(1) and (2)(a), the latter of which contains the sentencing en hancement when a dwe lling is involved, but she was ultimately convicted of atte mpted second degree bur glary under only § 18-4-203(1). She contends that this le nds support to her argum ent that she was not convicted of attempted burglary of a dwelli ng. 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 Ci r. 1991) (holding that issue e xhaustion is jurisdictional and- 7 - review “does not extend to points an alien could have made before the [BIA] but did not”). Furthermore, “[w]e decline to consid er arguments raised fo r 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