UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ SALVADOR PORTILLO PEREZ, a/k/a Salvador Portillo, Petitioner,

v. LORETTA LYNCH, United States Attorney General, Respondent. No. 15-9537 (Petition for Review)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before KELLY , BACHARACH , and MORITZ , Circuit Judges.

________________ _________________ Salvador Portillo Perez, a native and c itizen of Mexico, se eks review of the decision of the Board of Immigration Appeals (BIA) upholding an immigration judge’s (IJ) order denying his application for cancellation of removal. The BIA determined that Mr. Portillo 1 was ineligible fo r cancellation of removal because he had been convicted of a crime involvi ng moral turpitude (CIMT), pursuant to

* After examining the briefs and appellate record, th is panel has determined unanimously to honor 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 submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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.

1 In his brief, petitioner refers to himself as Mr. Portillo. FILED United States Court of Appeals Tenth Circuit 

### November 5, 2015 Elisabeth A. Shumaker Clerk of Court2 8 U.S.C. § 1227(a)(2)(A)(i), and, theref ore, he did not meet the criteria for cancellation of removal under 8 U.S.C. § 122 9b(b)(1)(C). We exercise jurisdiction under 8 U.S.C. § 1252(a)(1) a nd deny the petition for review. 2
I. BACKGROUND Mr. Portillo illegally entered the Unite d States in 1993. In 2002, he was convicted of soliciting prostitution in violation of Denver Municipal Code § 38-158(A)(1), 3 and prostitution in violati on of Denver Municipal Code § 38-158(A)(7). 4 In 2010, the Department of Homeland Security commenced removal proceedings on the ground that Mr . Portillo was an a lien present in the United States without being admitted or pa roled. He conceded removability and applied for cancellation of removal, arguing that removal would create exceptional and extremely unusual hardship for his United States citizen chil dren. Following a hearing at which he was represented by counse l, the IJ determined that Mr. Portillo’s convictions were CIMTs, so he was ineligible for cancellation of removal. The IJ

2 Although the BIA’s decision was to deny the discretionary relief of cancellation of removal, the und erlying issue is a legal one : whether Mr. Portillo met his burden of proving that his conviction was not a CIMT. Therefore, while this court generally lacks jurisdiction ove r denials of discretionary relief, see 8 U.S.C. § 1252(a)(2)(B), we do have jurisdicti on over the legal question presented, see id. § 1252(a)(2)(D).

3 Section 38–158(A)(1) provides that “[i]t shall be unlawful for any person . . . [t]o solicit another person for the purpose of prostitution.” Prostitu tion is defined as “any act of sexual intercourse including but not limited to fellatio, cunnilingus, masturbation, or anal intercourse, with an y person not his/her spouse in exchange for money or other thing of value.” Id. § 38-156(8).

4 Section 38-158(A)(7) provides that “[i]t shall be unlawful for any person . . . [t]o perform, offer or agree to any act of prostitution.”3 therefore denied the application, but gran ted Mr. Portillo’s request for voluntary departure. On appeal to the BIA, the BI A held that Mr. Portillo did not meet his burden to show he was eligible for the relief of cancellation of removal, and dismissed the appeal. Mr. Portillo now seeks review in this court, asserting that the BIA erred in finding his crimes were CIMTs because not all prostitution-related offenses necessarily involve morally turpitudinous conduct. He also argues that because prostitution is a victimless crime, not all prohibited conduct meet s the CIMT criteria of maliciousness, an identifia ble victim, actual harm, or intent to cause harm. II. DISCUSSION To be eligible for cancellation of removal under 8 U.S. C. § 1229b(b)(1), Mr. Portillo had the burden to show that (1 ) he had been present in the United States for ten years; (2) his moral ch aracter had been good for ten years; (3) he had not been convicted of certain crimes , including CIMTs; and (4) his removal would result in exceptional and extremely unusual hard ship to a qualifying relative. See 8 U.S.C. § 1229a(c)(4) (placing burde n of proof on alien to establish eligibility); Mena-Flores v. Holder , 776 F.3d 1152, 1161 (10t h Cir. 2015) (holding a lien bears the burden of proving his eligibility for discretionary re lief from removal). “An alien convicted of a CIMT is considered inadmi ssible and is therefore not e ligible for cancellation of removal . . . .” Garcia v. Holder , 584 F.3d 1288, 1289 ( 10th Cir. 2009) (citing 8 U.S.C. §§ 1182(a)(2)(A); 1229b(b)(1)(c)). Because the BIA found that Mr. Portillo4 was ineligible for the discretionary relief he sought due to his inability to show that he had not been convicted of a CIMT, it did not address the other criteria. The BIA issued a single-member decisi on affirming the IJ’s order. “Thus, although we will not affirm on grounds raised in the IJ d ecision unless they are relied upon by the BIA, we are not precluded from consulting the IJ’s more complete explanation of those same grounds.” Maatougui v. Holder , 738 F.3d 1230, 1237 n.2 (10th Cir. 2013) (brackets, ellipsis, and internal quot ation marks omitted). We review de novo whether a state conviction constitutes a CIMT. Rodriguez-Heredia v. Holder , 639 F.3d 1264, 1267 (10th Cir. 2011). Therefore, we review de novo the BIA’s legal determination that Mr. Por tillo’s convictions under Denver Municipal Code §§ 38-158(A)(1)&(7) qualified as CIMTs. “To determine whether a state convicti on is a [CIMT], we ordinarily employ the categorical approach.” Rodriguez-Heredia , 639 F.3d at 1267. Under that approach, “this court looks onl y to the statutory definition of the offense and not to the underlying facts of the conviction to determine whether the offense involves moral turpitude.” Efagene v. Holder , 642 F.3d 918, 921 (10t h Cir. 2011). “Moral turpitude refers to conduct wh ich is inherently base, vile, or depraved, contrary to the accepted rules of morality a nd duties owed between man and man, either one’s fellow man or society in general.” Id. (internal quotation marks omitted). To involve moral turpitude, an offense “must re quire a reprehensible or desp icable act,” that is, one “that is inherently wrong, or malum in se , rather than conduct deemed wrong only because of a statutory proscription, malum prohibitum .” Id. A CIMT “necessarily5 involves an evil intent or maliciousness in carrying out the reprehensible act.” Id. at 921-22. As a panel of this court recently r ecognized, “[t]he BIA has long viewed prostitution-related crimes as morally turpitudinous.” Florentino-Francisco v. Lynch , 611 F. App’x 936, 938 (10t h Cir. 2015) (collecting ca ses). There, the panel quoted with approval the holding of Rohit v. Holder , 670 F.3d 1085, 1089 (9th Cir. 2012), that “[s]oliciting an act of prostitution is not signi ficantly less base, vile, and depraved than engaging in an act of prostitu tion.” (internal quotati on marks omitted). Mr. Portillo attempts to distinguish Rohit because there, the relevant section of the California Penal Code prohibiting solicitation of pros titution required an act in addition to an agreement. See Rohit , 670 F.3d at 1089. He assert s that in contrast to the California statute, the relevant sections of the Denver Municipal Code do not require an act in addition to an agreement. But neither Rohit nor Florentino-Francisco relied on the requirement of an overt act, stating instead: “‘A person who solicits an act of prostitution does not become appreciably more morally turpitudinous when the other party accep ts or the two engage in the act.’” Florentino-Francisco , 611 F. App’x at 938 (quoting Rohit , 670 F.3d at 1089-90). Mr. Portillo also alleges that the BIA took the position that all prostitution-related offenses are CIMTs and t hus failed to identify and clarify what acts of prostitution are not CIMTs. He poi nts out that the Denver Municipal Code’s definition of prostitution includes sexua l acts other than intercourse. See Denver Mun. Code § 38-156(8) (inc luding in definition of pros titution “fellatio, cunnilingus,6 masturbation, or anal interc ourse”). He argues that if engaging in sexual intercourse for hire is a CIMT, “then it st ands to reason that a simple prostitution offense that is defined to include acts outside of sexual intercourse may not be classified as a [CIMT].” Aplt. Opening Br. at 16. We disagree that the BIA’s decision encompassed all prostitution-related offens es; the BIA addresse d only the offenses for which Mr. Portillo was convicted. 5 More to the point, Mr. Portillo has cited no authority for his argument that prostitution offenses not involving sexual intercourse are not CIMTs, and has failed to carry hi s burden of proving th at his convictions were not CIMTs. Finally, Mr. Portillo contends that becau se prostitution is a victimless crime, not all prohibited conduct meets the CIMT cr iteria of maliciousness, an identifiable victim, actual harm, or intent to cause harm. But as noted above, the BIA has long held that prostitution is a CI MT, a premise we must accep t because it arises from the BIA’s reasonable construction of the st atutory term “moral turpitude.” See Padilla-Calde ra v. Holder , 637 F.3d 1140, 1147 (10t h Cir. 2011) (“[I]f the implementing agency’s cons truction is reasonable, Chevron[, U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837 (1984),] requi res a federal court to accept the agency’s construction of the statute, even if th e agency’s reading differs from what the court believes is the best statutory interpre tation.” (internal quotation

5 Although the BIA erroneous ly referred the Colorado Revised Statutes rather than the Denver Municipal Code, it is clear that the BIA was referring to the Denver Municipal Code. See R. at 3 (BIA order citi ng Colorado Revised Statute §§ 38-158(A)(1)&(7); 117 (Denver M un. Code §§ 38-158(A)(1)&(7)).7 marks omitted)); Rohit , 670 F.3d at 1090 (applying Chevron deference to the BIA’s long-held view that pros titution is a CIMT). Moreover, although the BIA has recognize d that “it has been many years since the [BIA] has addressed, in a precedent decision, the i ssue of whether an offense involving prostitution represents a [CIMT] ,” the BIA has nevertheless concluded “that such an offense is st ill regarded as inherently base, vile, or depraved, and contrary to the accepted rule s of morality and the duties owed between persons and, in particular, to society in general.” Matter of Sehmi , 2014 WL 4407 689, at * 7 (BIA 2014 (unpublished)). 6 “Prostitution, and deri vatively solicitation of prostitution, are thus inhe rently wrong. . . .” Florentino-Francisco , 611 F. App’x at 939. Accordingly, we conclude that the BIA did not err in determining that Mr. Portillo’s convictions we re CIMTs and he was therefor e ineligible fo r the relief of cancellation of removal. III. CONCLUSION The petition for review is denied.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge

6 As an unpublished decision, Matter of Sehmi is “not precedential within the agency.” Efagene v. Holder , 642 F.3d 918, 920 (10th Cir. 2011). Therefore, we do not accord it Chevron deference, see id. , but cite it for its “power to persuade,” Skidmore v. Swift & Co. , 323 U.S. 134, 140 (1944) (stati ng that an agency’s statutory interpretation is “entitled to respect” if it has the “power to persuade”).