PUBLISH

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

_________________________________ ALEJANDRO LUJAN JIMENEZ, Petitioner,

v. JEFFERSON B. SESSIONS, III, United States Attorney General, Respondent. Nos. 16-9555 & 17-9527

_________________________________ Petition for Review from the Board of Immigration Appeals

_________________________________ James S. Lamb (Catherine A. Chan, on th e briefs), Chan Law Firm, Denver, Colorado, for Petitioner. Jessica A. Dawgert, Senior Litigation Co unsel (Chad A. Readler, Acting Assistant Attorney General, and Melissa Neiman-Kelting, Assistant Director, with her on the brief), U.S. Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.

_________________________________ Before BRISCOE , LUCERO , and BACHARACH , Circuit Judges.

_________________________________ LUCERO , Circuit Judge.

_________________________________ Alejandro Lujan Jimenez petitions for review from a final order of removal and an order by the Bureau of Immigrati on Appeals (“BIA”) declining to sua sponte FILED United States Court of Appeals Tenth Circuit 

### June 19, 2018 Elisabeth A. Shumaker Clerk of Court2 reopen removal proceedings. We dismiss the latter petition fo r lack of jurisdiction. Exercising jurisdiction under 8 U.S.C. § 1252(a), we grant the former. The BIA incorrectly dete rmined that Lujan’s 1 Colorado conviction for first degree criminal trespass, Co lo. Rev. Stat. § 18-4-502, was a crime involving moral turpitude. Under the portion of the statute at issue, a de fendant must have unlawfully entered a “motor vehicle with intent to co mmit a crime therein.” Id. The BIA held that the crime intended is an element of the offense such th at the statute is divisible on this basis. However, the Colorado Supreme Court has held an information charging only that a defendant intended to commit “a crime” contai ns “all essential elements of the crime of first degree crim inal trespass.” People v. Williams, 984 P.2d 56, 63 (Colo. 1999). And in numerous Colorado cases involving similar crimes, juries have been instructed as to alternative ulterior offe nses. We conclude that the Colorado statute is not divisible as to the particular ulterior offense. A prior decision of this court stating otherw ise, United States v. Venzo r-Granillo, 668 F.3d 1224 (10th Cir. 2012), cannot be reconciled with the approach to divisi bility set forth in Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). I Lujan is a native and citizen of Mexico. He first entered the United States as a child sometime in the 199 0s. His most recent entry into the United States occurred in May 2004. In January 2007, Lujan pled guilty in Colorado state court to Criminal

1 We refer to the petitioner as Lujan, consistent with the parties’ briefing.3 Trespass of a Motor Vehicle with the Intent to Commit a Crime Therein, in violation of Colo. Rev. Stat. § 18-4-502. He was sentenced to thirty-fi ve days in jail. On May 12, 2008, the Department of Homeland Security issued Lujan a Notice to Appear. It later filed an amended no tice charging that he was removable under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present in the United States without being admitted or paroled. Lujan appeared in immigration court in September 2008 and received a continuance to hi re an attorney. After reta ining counsel, he obtained two additional continuances in November 2008 and February 2009. In April 2009, he conceded removability. Lujan then applied for adjustment of status and cancellation of removal. He obtained four additional con tinuances of his removal pr oceedings. In August 2011, Lujan submitted documents in s upport of his applications fo r relief. His case was set for a final merits hearing in January 2014. However, on May 6, 2013, an Immigration Judge (“IJ”) resc heduled the hearing for June 5, 2013. Lujan requested a continuance on May 13, which was denied . His counsel moved to withdraw on May 24. Lujan appeared in immigration court on June 5, 2013, a nd the IJ granted counsel’s motion to withdraw. Lujan stat ed that he was attempting to obtain new counsel, but proceeded pro se at the hearing. The IJ denied relief, concluding that Lujan was ineligible for adjustment of st atus based on his immi gration history and that he was ineligible for can cellation of removal because he had been convicted of a crime involving moral turp itude—his criminal trespass offense in Colorado.4 Lujan appealed to the BIA, arguing th at the IJ’s denial of a continuance violated his right to due process and that his Colorado conviction was not a crime involving moral turpitude. The BIA affirmed the IJ’s ruling. Lujan then filed an untimely petition for review, which we dismi ssed. Lujan-Jimenez v. Holder, No. 14-9608 (10th Cir. Jan. 30, 2015) (unpublis hed). He also file d a motion requesting that the BIA reopen his remova l proceedings or reissue it s removal order, which the BIA denied. We granted his petition for revi ew of that order, remanding to the BIA to explain its reasons for d eclining to reissue the removal order. Lujan-Jimenez v. Lynch, 643 F. App’x 737, 738 ( 10th Cir. 2016) (unpublished). On remand, the BIA reissued Lujan’s re moval order. Lujan filed a petition for review of the reissued order. Several months later, he filed a request that the BIA sua sponte reopen his proceedings. The BIA dec lined to do so, and Lujan filed a second petition for review. We cons olidated the two petitions. II We first consider our jurisdiction ove r Lujan’s petitions for review. See Margheim v. Buljko, 855 F. 3d 1077, 1083 (10th Cir. 2017) (“As a federal court of limited jurisdiction, we have an indepe ndent obligation to confirm that our jurisdiction is proper.”). In petition num ber 16-9555, Lujan seeks review of the BIA’s final order of removal. We possess jurisdiction to review final orders of removal under 8 U.S.C. § 1252(a )(1). Lujan’s petition was ti mely filed within thirty days of entry of the order. See § 1252(b)(1); Stone v. IN S, 514 U.S. 386, 405 (1995) (petition for review deadline is jurisdictional). And Luja n seeks review of statutory5 and constitutional questions ra ther than discretionary i ssues or other matters over which jurisdiction is barred by § 1252(a)(2). However, we lack jurisdiction over petit ion number 17-9527. In that petition, Lujan seeks review of the BIA’s decision declining to sua sponte reopen his removal proceedings. Our court has previously he ld that “we do not have jurisdiction to consider [a] petitioner’s claim that th e BIA should have su a sponte reopened the proceedings . . . because th ere are no standards by whic h to judge the agency’s exercise of discretion.” Infanzon v. Ashc roft, 386 F.3d 1359, 1361 (10th Cir. 2004). We accordingly review the merits only as to petition number 16-9555. III We review the ruling of the BIA as the agency’s final decisi on. Cruz-Funez v. Gonzales, 406 F.3d 1187, 1190 (10th Cir. 2005). Howeve r, “[w]e may consult the IJ’s decision to give substance to the BI A’s reasoning.” Razkane v. Holder, 562 F.3d 1283, 1287 (10th Cir. 2009). In doing so, we review legal issues de novo and factual findings for substantial evidence. Elzour v. Ashcroft, 378 F.3d 11 43, 1150 (10th Cir. 2004). A Because Lujan conceded removability, he bears the burden of establishing eligibility for relief from re moval. 8 U.S.C. § 1229a(c)(4)(A ). An alien is ineligible for cancellation of removal if he has been previously convicted of a crime involving moral turpitude. 8 U.S.C. §§ 1229b(b)(1)(C ), 1182(a)(2)(A)(i)(I). A prior conviction qualifies if it involves “conduct which is inhere ntly base, vile, or depraved, contrary6 to the accepted rules of mo rality.” Efagene v. Holder , 642 F.3d 918, 921 (10th Cir. 2011). In determining whether a prior conv iction is for a crime involving moral turpitude, we generally apply the categor ical approach. See Flores-Molina v. Sessions, 850 F.3d 1150, 1158 (10th Cir. 2017). Under that approach, “we must presume that the conviction rested upon no thing more than the least of the acts criminalized, and then determ ine whether even those acts are encompassed” within the definition. Moncrieffe v. Holder, 569 U.S. 184, 190-91 ( 2013) (quotation and alterations omitted). The actua l facts of a prior crime are ir relevant. Id. at 190. If a state statute “sweeps more br oadly” than the definition at issue, it does not qualify under the categorical appr oach. Descamps v. Unite d States, 570 U.S. 254, 261 (2013). If a statute is divisible, however, we employ the modified categorical approach. Id. Divisible statutes “list elem ents in the alternativ e, and thereby define multiple crimes.” Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). Under the modified categorical appro ach, courts may look to a li mited set of documents to determine which elements formed the basi s of a prior conviction. Descamps, 570 U.S. at 262. We then apply the categoric al approach to determine whether those alternative elements necessarily qualify as a crime i nvolving moral turpitude. See id. at 263-64. The Colorado statute at issue provides: “A person commits the crime of first degree criminal trespass if such person knowingly and unl awfully enters or remains7 in a dwelling of another or if such person enters any motor vehicle with intent to commit a crime therein.” Colo . Rev. Stat. § 18-4-502. Th e record shows that Lujan pled guilty to trespass of an automobile , but it does not indicate which crime he intended to commit. Under BI A precedent, this offense qua lifies as a crime involving moral turpitude only if “the particular crime the alien intended to commit . . . involves moral turpitude.” In the Matter of S-----, 6 I. & N. Dec. 769, 770 (BIA 1955). 2 Thus, the BIA ruled that “some of th e criminal conduct defined by the statute may involve moral turpitude wh ile other conduct may not.” Although the Colorado statute sweeps mo re broadly than the definition of a crime involving moral turpitude, the BIA concluded that it was subject to the modified categorical approach. Specifically, it determined that the partic ular crime a defendant intended to commit is an elemen t of the offense. Because “it is the undocumented alien who bears the burden of proof, under the modified categorical approach, to show that his prior convi ction was not a [crime involving moral turpitude],” Lucio-Rayos v. Sessions, 875 F.3d 573, 581 (10th Cir. 2017), the BIA held that the ambiguous record barred relief . Lujan’s eligibility for cancellation of

2 Lujan concedes that th e BIA’s interpretation of crime involving moral turpitude in this respect is reasonable. See Rangel-Perez v. Lync h, 816 F.3d 591, 597 (10th Cir. 2016) (BIA interp retations are due deference when issued in precedential decisions that bind the agency).8 removal turns on whether the BIA correctly de termined that the u lterior crime is an element of the Colorado offense. 3
B The Supreme Court has cautioned that a statute is not divi sible if it “merely specifies diverse means of satisfying a singl e element of a single crime.” Mathis, 136 S. Ct. at 2249. “Elements are the constitu ent parts of a crime’s legal definition—the things the prosecution must prove to sust ain a conviction.” Id . at 2248 (quotations omitted). Means, in contrast , are “circumstances or events having no legal effect or consequence” because “they need neither be found by a jury nor admitted by a defendant.” Id. (quotations and alterations omitted). If a statute list s alternative means, a jury need not agree on the partic ular means involved in order to convict. For example, if a statute re quired proof that a defendant used a deadly weapon, some jurors could find that he used a knife while others could find that he used a gun, and thus the statute would not be divisible. Id. Our court previously concluded that the Co lorado statute at issue is divisible. But as the government concedes, that case was decided under a now-overruled standard. We are generally bound by prior panel precedent. United States v. Brooks, 751 F.3d 1204, 1209 (10th Cir. 2014). “This rule does not apply, however, when the

3 The parties agree that th e statute is divisible as between offenses involving trespass to a dwelling and tr espass to a motor vehicle. See People v. Rodriguez, 43 P.3d 641, 643 (Colo. App. 2001) (holding that the stat ute “is comprised of two entirely independent clauses” and “that the ‘intent to commit a crime therein’ language establishes an elemen t of criminal trespass of a motor vehicle and not an element of criminal trespass of a dwelling”). We must determine whether the motor vehicle clause is further divisible.9 Supreme Court issues an intervening decision that is contrary to or invalidates our previous analysis.” Id . (quotation omitted). In a prior opinion considering Colo. Rev. Stat. § 18-4-502, we held that the modified categorical approach can “be applied to determin e what crime the defendant intended to commit when he entered the motor vehicle.” United States v. VenzorGranillo, 668 F.3d 1224, 1232 ( 10th Cir. 2012). However, we used an approach to divisibility under which courts could apply “t he modified categori cal approach when a defendant’s statute of conviction contained alternative terms, regardless of whether those terms described different means of committing a single crime or different elements delineating separate crimes.” United States v. Titties, 852 F.3d 1257, 1262 (10th Cir. 2017). The Suprem e Court subsequently overru led that approach, holding “that the modified categorical approach is available only when a statute lists alternative elements.” Id. at 1262-63 (citing Math is, 136 S. Ct. at 2253). In Venzor-Granillo, we rej ected the argument that, af ter applying the modified categorical approach to determine the defenda nt “was convicted un der the trespass to a motor vehicle part of the statute,” the court “was required to abstain from further review of the judicial records underlyi ng his prior conviction, disregard any additional facts those records revealed, and return to the pure categorical approach.” 668 F.3d at 1228-29. Instead, we stated that the purpose of the modified categorical approach “is to enable the sentencing court to identify those facts that necessarily supported a prior conviction” and determine whether the conviction rested on “facts that would also satisfy the de finition” at issue. Id. at 1229-30 (quotation omitted).10 Rather than looking to the elements of the offense as define d by Mathis, see 136 S. Ct. at 2248, we stated that a conviction “n ecessarily rest[s]” on the facts urged “in light of the theory of the case.” Venzor-Granillo, 668 F.3d at 1231 (quotation omitted). This approach cannot be squared with Mathis. In that case, the Court explained that the modified approach serves—and se rves solely—as a tool to identify the elements of the crime of convi ction when a statute’s disjunctive phrasing renders one (or more) of them opaque. It is not to be repurposed as a technique for disc overing whether a defendant’s prior conviction, even though for a too- broad crime, rested on facts (or otherwise said, involved means) that also could have satisfied the elements of a generic offense. Mathis, 136 S. Ct. at 22 53-54 (citation omitted). At some points, the Venzor-G ranillo panel referred to el ements. It stated that “Colorado law requires the ulte rior offense to be charged and proved as an element of the statutory offense of first degree trespa ss.” Venzor-Granillo, 668 F.3d at 1231 (citing Williams, 984 P.2d at 59, 65). Howeve r, our case law at the time “understood the Supreme Court’s discussion of ‘elements’ in earlier cases to refer not to the traditional view of what an element is but rather to a br oader meaning.” Titties, 852 F.3d at 1269 n.12. In another case appl ying this now-abrogated approach, we explicitly stated that the S upreme Court’s use of the term “element” with respect to the modified categorical a pproach included both “means and elements” regardless of whether “some jurors could have convicted under one of the statutory phrases while other jurors convicted under a different phr ase.” United States v. Trent, 767 F.3d11 1046, 1060 (10th Cir. 2014), abrogated by Mathis, 136 S. Ct. at 2251 n.1. We conclude that the only fair reading of Venzor-Granillo is that it used the term elements in the same manner. In Mathis, however, “the Supreme Court embraced the traditional view of elements .” Titties, 852 F.3d at 1269 n. 12; see also Mathis, 136 S. Ct. at 2254 (rejecting argument that Court’ s prior use of “elements” was not intended to “distinguish between ‘means’ and ‘element s,’ but instead to refer to whatever the statute lists—whether means or elements” (quotation omitted)). We hold that the portion of Venzor-Gra nillo analyzing whether Colo. Rev. Stat. § 18-4-502 is divisible as to the ulterior offense is no longer good law. As the Supreme Court clarified in Ma this, the modified categorical approach applies only if a statute lists alternative el ements as in “the constitu ent parts of a crime’s legal definition.” 136 S. Ct. at 2248 (quotation omitt ed). Accordingly, we must consider whether the ulterior crime is an element of the Colora do statute under the Supreme Court’s more recent standard. C To determine whether a statute lists al ternative elements or means, we may look to the statutory text, state court decisi ons, and the record of a prior conviction. Titties, 852 F.3d at 1268. A statute is divi sible only if these sources allow us to conclude with “certainty” that a statute contains alterna tive elements. Id. (quotation omitted); see also United Stat es v. Degeare, 884 F.3d 12 41, 1248 (10t h Cir. 2018) (“[U]nless we are certain that a statute’s alternatives are el ements rather than means, the statute isn’t divisible and we must esch ew the modified cate gorical approach.”).12 Colorado case law demonstr ates that the intended cr ime is not an element, although we acknowledge the jurisprudence is somewhat mixed. In Williams, the Colorado Supreme Court considered whet her an information charging criminal trespass without identifying the ulterior crime defendant intended to commit was fatally defective. 984 P.2d at 58. The info rmation at issue mere ly alleged that the defendant unlawfully entered the motor vehicl e of another “with the intent to commit a crime therein.” Id. Nevert heless, the court concluded th at “the information recited the statutory elements of th e crime of criminal trespass. ” Id.; see also id. at 63 (“[T]he information set forth all essentia l elements of the cr ime of first degree criminal trespass.”). It explained that an information “i s substantively defective” if it “fails to charge an essential element of an offense.” Id. at 60. But because the information contained all esse ntial elements, it did “not wa rrant automatic reversal of Williams’ conviction.” Id. at 58. The Colorado Supreme Court distinguish ed a defect in substance, which “requires dismissal of the charge or re nders void any conviction entered on such charge,” from a defect in form, which occu rs if “the informati on pleads the statutory elements of the offense but the count lacks sp ecificity.” Id. at 63- 64. As to a defect in form, Colorado courts consider whether the lack of specifici ty will prejudice the preparation of a defense and protect the defendant from dou ble jeopardy. Id. at 65. Looking to the full record of the case, the court c oncluded that Williams was provided fair notice of the ch arge against him because the record “left no doubt as to13 the allegations of time, place, and circumstan ce of the trespass and ulterior crimes of assault and attempted r obbery.” Id. at 65. The Williams decision overruled a prior lin e of Colorado cases holding that an information charging burglary is substantively defective unless it identifies the particular ulterior crime al leged. Id. at 61-63 & n.9. Colorado’s burglary statute, like its criminal trespa ss statute, requires the intent to commit an ulterior crime. Colo. Rev. Stat. § 18-4-202. Prior decisions held that “specific intent to commit a specific felony is an essential element of the offense of burglary.” Garcia v. People, 483 P.2d 1347, 1349 (Colo. 1971). But thos e cases interpreted a prior version of the burglary statute that listed a number of par ticular ulterior crimes . Williams, 984 P.2d at 62. Similarly, the present version of the criminal trespass statute was amended from a prior version requiring the intent to commit theft. Id. The court held that the change in the criminal trespass and burglary stat utes triggered a change in the required pleading of elements in the charging documents. Earlier versions of both statutes required a pros ecutor to set forth the specific crime underlying the burglary charge or to sp ecify that the defendant intended to commit theft. Subsequent amendments to the statutory language altered the specificity requirement. Id. Williams holds that a prosecutor does not need to charge a specific ulterior offense to sustain a trespass conviction. And the Supr eme Court has referred to alternatives which “must be charged (and so are elements) and which need not be (and so are means).” Mathis, 136 S. Ct . at 2256. Neverthe less, we recently explained that such state court decisions are not necessarily di spositive. See United14 States v. Hamilton, 889 F.3d 688, 693-94 (10th Cir. 2018). In Hamilton, we held that a state court opinion requiring that the pla ce being burgled be included in a charging document did not demons trate that the burglary location was an element because state law mandated that charging doc uments “allege not only the elements but also enough facts for a defendant to prepare for trial and to defend against double jeopardy.” Id. at 693 (citing Ross v. State, 147 P.2d 797, 799 (Okla. Crim. App. 1944)). The Williams decision does not share this problem. It clearly distinguished between defects in form, whic h concern whether a defendant “had adequate notice for purposes of trial preparation and whether he is protected from fu rther prosecution for the same offense in a subsequent pros ecution,” Williams, 984 P.2d at 64, from defects in substance, which concern whether “the informat ion set forth all essential elements of the crime,” id. at 63. B ecause Williams analyzed those two issues separately, its discussion of elements cannot be mistaken for concerns regarding a charging document’s specificity. But Williams may not be di spositive for a different re ason. As noted in our discussion of Venzor-Granillo, supra, courts prior to Mathis often used the term elements to refer generally to statutory al ternatives. See Hamilton, 889 F.3d at 694. And Colorado courts have been inconsistent in their use of the term. Despite the holding in Williams that a conviction cannot stand if the charging document fails to allege “the essential elem ents of an offense,” 984 P. 2d at 63, other Colorado decisions state that “[ t]here is no requirement , either constitutional or statutory, that every element of the offense be alleged in the information, although the several15 elements (such as specific intent) must, of course, be proved on the trial,” People v. Ingersoll, 506 P.2d 3 64, 365 (Colo. 1973) (emphases omitted); see also People v. Russell, 36 P.3d 92, 96 (Colo. App. 2001) (“ It is not necessary that an information include every element of the offense that must be pr oved at trial.”). Further, the Williams opinion did not address whether a jury must be instructed as to a particul ar ulterior offense. We have looked to both charging language and jury instructions to determin e whether statutory al ternatives are means or elements. Degeare, 884 F.3d at 1254-57. After concluding that the defendant was not prejudiced by the defect in form, th e Williams court expr essly declined to consider the sufficiency of the jury inst ructions—which also failed to identify a particular ulterior crime—b ecause that issue had been waived. 984 P.2d at 65. However, the court noted “‘it is . . . necessary that the specific ulterior crime be clearly and accurately defined in order to de termine if the defendant ’s intent was that proscribed by the burglary statute.’” Id. (quoting People v. Ar chuleta, 554 P.2d 307, 310 (Colo. 1976)). We do not read this quotati on to suggest that the jury must necessarily agree on a particular intended offense in order to convict. See Mathis , 136 S. Ct. at 2248 (statutory alternatives are not elements if the jury can convict without agreeing on the particular alternative). Inst ead, the court was noting that whatever ulterior offense or offenses are at issu e should “be clearly and accurately defined,” Williams, 984 P.2d at 65 (quotation omitted), so that the ju ry understands what is required to commit those ulterior offenses. Thus, if a pros ecutor argues that a defendant intended to16 commit theft, the elements of theft should be included in the jury instructions. See Archuleta, 554 P.2d at 310. But this rule would not bar a prosecutor from proceeding under alternative theories (fo r example, that a defendant intended to commit theft or arson); it would merely require that the elements of each alternative be provided. And if a jury may convict without agreeing on a particular ulterior offense, it cannot be an element. See Mathis, 136 S. Ct. at 2249; Degear e, 884 F.3d at 1252. The Williams decision itself suggests that alternative instructions would be permissible. It f ound that Williams had not suffe red prejudice because he “was sufficiently advised of the ulterior crimes the prosecution alle ged he intended to commit upon the trespass,” spec ifically, “assault and atte mpted robbery.” Williams, 984 P.2d at 65 (emphases added). And in support of its statem ent regarding jury instructions, the court quoted a Kansas decision holding that “‘the trial judge’s failure to state the specific underlying felony or felonies a nd their elements prevented the jury from rendering a lawful verdict.’” Id. (quoting State v. Linn, 840 P.2d 1133, 1138 (Kan. 1992) (emphasis added)). 4 We have not uncovered any Colorado deci sion directly deciding whether a jury must unanimously agree on one specific ulteri or offense to convict under § 18-4-502.

4 For the same reason, we are not pe rsuaded that Colorado’s pattern jury instructions shed much light on the ques tion before us. The first degree trespass instruction includes a space for courts to insert the name of the ulterior offense, and a note cites Williams for the pr oposition that “a count chargi ng first degree criminal trespass should allege the crime that th e defendant intended to commit,” CJI-Crim. § 4-5:03 & n.3. But the pattern instructi on does not tell us whether a jury would have to reach a unanimous determin ation if multiple ulterior offenses are at issue.17 However, two Colorado Court of Appeals opi nions state in dicta that a jury must unanimously agree on the underlying crime to support a burglary conviction. People v. Villarreal, 131 P.3d 1119, 1128-29 (Colo. App. 2005); People v. Palmer, 87 P.3d 137, 140 (Colo. App. 2003). And as th e Colorado Supreme Court explained in Williams, the burglary and trespass statutes contain parallel language. 984 P.2d at 62. In Palmer, the defendant argued that ju ry instructions were insufficient because they failed to identify a part icular victim of the ulterior offense, felony menacing. 87 P.3d at 140. In the course of rejecting that argument, the court st ated that “the jury must agree on the underlying fe lony defendant intended to co mmit.” Id. at 140. In Villarreal, the court cited Palmer for that proposition, but held any error was harmless “because the jury unanimously found defendant guilty of two of the possible felonies underlying the burglary.” 131 P.3d at 1128-29. In neither case was the unanimity statement essential to the court’s disposition. See Taylor v. Grogan, 900 P.2d 60, 64 (Col o. 1995) (defining dicta as statements made by a court “not integral to its resolution of the issues before it”). Our court has noted that dicta, “being peripheral, may not have received the full and careful consideration of the court that uttered it. ” OXY USA, Inc. v. Babbitt, 230 F.3d 1178, 1184 (10th Cir. 2000) (quotati on omitted). Further, the unanimity question has been treated as unresolved in Co lorado case law. In People v. Linares-Guzman, 195 P.3d 1130 (Colo. App. 2008), the court declined to reach the governme nt’s argument that “Villarreal and Palmer were wrongly decided.” Id. at 1134. In that case, the jury was instructed that it could convict on a burglary charge if the defendant “entered the18 home with the intent to commit either aggravated robber y or theft.” Id. But as in Villarreal, any unanimity erro r would have been harmless because the jury convicted on a separate attempted aggravated robbery charge, indicating it unanimously agreed the defendant intended to commit aggravated robbery. Id. We thus conclude that Palmer and Villarreal are not the type of “state cour t decision[s] definitively answer[ing] the question” as called for in Mathis, 136 S. Ct. at 2256. In addition to the foregoi ng cases, several other Co lorado decisions reference jury instructions alleging alternative ulte rior crimes for burglary. In People v. Barnhart, 638 P.2d 814 (Colo. App. 1981) , the defendant was charged “with two underlying crimes: crim inal mischief and theft,” and the jury instructions referred to the underlying crimes in the di sjunctive. Id. at 816. Th e defendant argued that the trial court erred by failing to instruct the jury on the elem ents of theft. Id. The Colorado Court of Appeals concluded any error was ha rmless because “[t]he elements of criminal mischief were correctly defined by th e instructions, and the jury found defendant guilty of crim inal mischief.” Id. Sim ilarly, in People v. Ager, 928 P.2d 784 (Colo. App. 1996), the jury was instructed that it could convict on a burglary charge if the defe ndant had the “intent to co mmit therein the crime of assault or harassment.” Id . at 789. The court did not decide whether unanimity was required as to which crime was intended be cause the jury conv icted on a separate sexual assault charge and ther efore must have unanimously agreed on that ulterior offense. Id. Other Colorado cases note a lternative instructions in passing. See People v. Richardson, 58 P.3d 1039, 1045 (Colo. App. 2002) (noting that “the jury19 was instructed only on false imprisonmen t and third degree assault as underlying crimes for the burglary”); People v. Rami rez, 18 P.3d 822, 827 (Colo. App. 2000) (burglary instruction stated that defendant acted “with in tent to commit therein the crimes of assault and menaci ng” (alteration omitted)). We note the same pattern as to Colo rado cases involving fe lony murder, which also requires proof of an ulterior offense. See People v. Bast in, 937 P.2d 761, 763 (Colo. App. 1996) (the jury was instructed that the defe ndant could be convicted of felony murder if death resulted “in the cour se of or in furtherance of First Degree Sexual Assault or Sexual Assault on a Ch ild”); People v. Freeman, 668 P.2d 1371, 1382 (Colo. 1983) (“The jury was instruct ed on the elements of murder after deliberation and felony murder in wh ich the underlying fel ony was robbery or attempted robbery.”); see also People v. Beller, 411 P.3d 1145, 1148 (Colo. App. 2016) (noting that the “trial court’s jury instructions id entified aggravated robbery, attempted aggravated robbery, robbery, and attempted robbery as predicate offenses for the felony murder count”). In Doubl eday v. People, 364 P.3d 193 (Colo. 2016), the Colorado Supreme Court referred to “t he underlying offense” as “an essential element of felony murder.” Id. at 194 n.1. But it has also st ated that if a defendant is charged with multiple underlying offenses, “ only one of these alle ged felonies [i]s essential to support his convi ction for felony murder.” Callis v. People, 692 P.2d 1045, 1054 (Colo. 1984). A nd Colorado courts have crafte d a special rule for double jeopardy issues involving felony murder conv ictions with multiple ulterior offenses: “that offense which serves as the primary predicate sh ould merge into the felony20 murder charge, and the judgments of convi ction for the remaining offenses should exist independently of the felony murder conviction.” People v. Arrington, 843 P.2d 62, 67 (Colo. App. 1992); see also People v. Huynh, 98 P.3d 90 7, 915 (Colo. App. 2004). None of the foregoing appellate cases sp ecifically holds that a jury may be instructed on multiple ulterior offenses, or that a jury can convict without unanimity as to the particular underl ying crime. However, the number of cases referencing alternative theories indicates that such a practice occurs with some regularity in Colorado courts, notwithstanding the dicta contained in Villarreal, 131 P.3d at 1128- 29, and Palmer, 87 P.3d at 140. In light of this practice, and the Colorado Supreme Court’s holding in Williams that a convi ction for first degree trespass may be sustained even if the charging document fails to allege a specific ulterior crime, 984 P.2d at 58, we conclude that Colorado’s firs t-degree trespass stat ute is not divisible as to the ulterior offense. See Mathis, 136 S. Ct. at 22 56. Decisions from Colorado’s intermediate appellate court and decisions th at pre-date Williams do not persuade us to deviate from its holding. Because we conclude that Co lorado case law is dispositive of the issue, we need not addr ess the remaining sour ces that may bear on the question. See Mathis, 136 S. Ct. at 2256 (if “a state court decision definitively answers the question,” then “a sentencing judge need only follow what it says”); Hamilton, 889 F.3d at 692 (“Each sour ce may definitively show whether the locational alternatives consti tute elements or means.”).21 D The BIA affirmed the IJ’s conclusion that Lujan’s c onviction would qualify as a crime involving moral turpitude only if the u lterior offense so qua lified. See In the Matter of S-----, 6 I. & N. D ec. 769 at 770. It explicitl y acknowledged that the motor vehicle portion of Colo. Rev. § 18-4-502 was broader than the definition of a crime involving moral turpitude, but held that the statute was di visible as to the ulterior crime. Because we hold that this portion of the statute is not divisible as to the intended offense, Lujan’s conviction does not qualify as a crime involving moral turpitude. See Afamasaga v. Sessions, 884 F.3d 1286, 1289 (10th Ci r. 2018) (a state offense qualifies as a crime involving moral turpitude onl y if “the minimum conduct that would satisfy the” releva nt portion of the statute “woul d necessarily also satisfy” the definition of a crime involving moral turpitude). 5
IV For the forgoing reasons, we DISMISS petition number 17-9527, GRANT petition number 16-9555, VACATE Lujan’s order of removal, and REMAND to the BIA for further proceedings cons istent with this opinion.

5 Because we grant Lujan’s petition on this basis, we do not reach his argument that the IJ violated his due process rights by denying a continuance.