UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

RUBEN BELTRAN-RUBIO, Petitioner,

v. ERIC H. HOLDER, JR., United States Attorney General, Respondent. No. 13-9565 (Petition for Review)

ORDER AND JUDGMENT *

Before PHILLIPS , PORFILIO , and BALDOCK , Circuit Judges.

Ruben Beltran-Rubio, a native and citi zen of Mexico, challenges the Board of Immigration Appeals’ (BIA’s) decision uphol ding the denial of his application for cancellation of removal and ordering him to depart the United States. As explained below, we conclude that Beltran-Rubio’s a pplication was properly denied and that he

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination of this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 

### April 30, 2014
Elisabeth A. Shumaker Clerk of Court- 2 - is deportable because he committed a cr ime involving moral turpitude (CIMT). Thus, we deny his petition for review.
B ACKGROUND Beltran-Rubio entered the United States without inspection in 1994. Twelve years later, he was convicted in Colorado state court of criminal impersonation to gain a benefit, Colo. Rev. Stat. § 18-5-113(1)(e) (2006) , a felony carrying a one-year minimum prison sentence. The Department of Homeland Security (DHS) initiated removal proceedings on the grounds that Beltran-Rubio had en tered the country illegally and had committed a crime invol ving moral turpitude. In response, Beltran-Rubio applied for cancellation of removal. 1 DHS filed a motion to pretermit Beltran-Rubio’s application, arguing that he was ineligible for cancellation of removal because his Colora do conviction was a CIMT. An Immigration Judge (IJ) found Beltran-Rubio remova ble as charged, granted DHS’s motion, denied Beltran-Rubio’s appli cation, and ordered him to depart the country within two months. Beltran-Rubio appealed. The BIA dismissed his appeal, concluding that Colorado’s criminal-imp ersonation statute establishes a CIMT because the statute inherently “requires fr aud in knowingly using a falsehood, with the attempt to obtain a benefit.” R. at 4.

1 An alien may be eligible for cancel lation of removal if he meets certain requirements, including that he has not been convicted of a CIMT. See 8 U.S.C. § 1229b(b)(1)(C).- 3 - D ISCUSSION “In our review of the agency’s deci sion, we decide pur ely legal questions de novo .” Karki v. Holder , 715 F.3d 792, 800 (10th Cir. 2013) (i nternal quotation marks omitted). Thus, we review de novo the BIA’s legal determination that Beltran-Rubio’s conviction under § 18– 5–113(1)(e) qualifies as a CIMT. 2
“To determine whether a state convicti on is a [CIMT], we ordinarily employ the categorical approach.” Rodriguez-Heredia v. Holder , 639 F.3d 1264, 1267 (10th Cir. 2011). Under th at approach, “this court l ooks only to the statutory definition of the offense and not to th e underlying facts of the conviction to determine whether the offense involves moral turpitude.” Efagene v. Holder , 642 F.3d 918, 921 (10th Cir. 2011). “Moral turpitude re fers to conduct which is inherently base, vile, or de praved, contrary to the accepted rules of morality and

2 Because a single member of the BIA entered a brie f affirmance order under 8 C.F.R. § 1003.1(e)(5), we review the BIA’ s decision as the final order of removal, but “we may consult the IJ’s opinion to the extent that the BIA relied upon or incorporated it.” Sarr v. Gonzales , 474 F.3d 783, 790 (10th Cir. 2007). To the extent the government urges that we defer under Chevron, U.S.A., Inc. v. Nat. Res. Defense Council, Inc. , 467 U.S. 837 (1984), to the BIA’s view of § 18-5-113(1)(e) as a CIMT, we decline. Chevron deference doe s not apply, where, as here, the BIA’s decision is unpublished and doe s not rely on “prior BIA precedent addressing th e same question.” Efagene v. Holder , 642 F.3d 918, 920 (10th Cir. 2011). Moreover, “the BIA is owed no deferen ce to its interpretation of the substance of the state-law offense at issue, as Congress has not charged it with the task of interpreting a state criminal code.” Id. at 921. But insofar as the BIA’s decision has “the power to persuade ,” it is “entitle d to respect.” Christensen v. Harris County , 529 U.S. 576, 587 (200 0) (internal quotation marks omitted) (discussing the sliding-scale mode l of deference established in Skidmore v. Swift & Co. , 323 U.S. 134, 140 (1944)).- 4 - duties owed between man and man, either on e’s fellow man or soci ety in general.” Id. at 921 (internal quotation marks omitted). Section 18-5-113 resides in the Colo rado criminal code as one of many “Offenses Involving Fraud.” See Colo. Rev. Stat., Title 18, Article V. The Colorado Court of Appeals describes “the criminal impersonation statute [a ]s one provision of the Criminal Code invoking a portion of the state’s police power to criminalize certain types of fraudulent impersonation.” People v. Van De Weghe , 312 P.3d 231, 235 (Colo. Ct. App. 201 2) (emphasis added). The statute provides: “(1) A person commits crim inal impersonation if he knowingly assumes a false or fictitious identity or capacity , and in such capacity he . . . (e) [d]oes any . . . act [ not specified in subclauses (a ) through (d)] with intent to unlawfully gain a benefit for himself or a nother or to injure or defraud another.” Colo. Rev. Stat. § 18-5-113(1)(e). Beltran -Rubio contends that the statute is not categorically a CIMT because “it prohibits conduct that is both morally turpitudinous and conduct that is not.” Aplt. Opening Br . at 7. He acknowledges that this court recognizes a crime as a CIMT if, for instan ce, it has “fraud [ ]as an ingredient.” Rodriguez-Heredia , 639 F.3d at 1268 (internal quota tion marks omitted). He then points out that fraud is me ntioned in subclause (e) as only one of three possible intended goals: (1) intent to benefit; (2) intent to injure; or (3) intent to “defraud.” Thus, Beltran-Rubio contends, a person could co mmit an act with the intent to benefit- 5 - and, despite violating the statute, would not have committed a CIMT because there is no fraud. We disagree with Beltran-Rubio’s interp retation of the statut e, as he ignores the statute’s introductory clause. That cl ause requires the “knowing[ ] assum[ption of] a false or fictitious id entity or capacity,” Colo. Re v. Stat. § 18-5-113(1)—or, stated succinctly, deceit. A nd when that deceit is used w ith any of the intended goals in subclause (e)—whether to benefit, injure , or defraud—there is fr aud, as that term is commonly understood. See Black’s Law Dictionary 731 (9th ed. 2009) (defining fraud as “[a] knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment”); cf., e.g. , Lagunas-Salgado v. Holder , 584 F.3d 707, 712 (7th Cir. 2009) ( holding “that knowingly selling false official identification doc uments involves inherently deceptive conduct and is, therefore, a crime involving moral turpitud e”). Thus, by knowingly assuming a fake identity or capacity, a person ca n be guilty of a CIMT under § 18-5-113(1)(e) even if he or she employs that deceit with onl y the intent to benefit or injure. Beltran-Rubio asserts that “[i]f intent to defraud could truly be read into the entire statute, the legislatur e had no reason to include ‘int ent to defraud’ as a possible element of the crime separate from ‘intent to gain a benefit.’” Aplt. Opening Br. at 18. We disagree. The fact that fraud can be implied from the st atute’s introductory clause for the purpose of assessing morally turpitudinous conduct does not mean that there are duplicative fraud intents. Sp ecifically, the Colorado Supreme Court has- 6 - stated that the statute has two distinctly different ment al states: (1) the “knowing utilization of a false or fict itious identity or capacity”; and (2) “the intent to unlawfully gain a benefit for one ’s self or another, or to injure or defraud another.” Alvarado v. People , 132 P.3d 1205, 1208 (Colo. 2006). While the first mental state, in conjunction with using a fake identity or capacity to accomplish one of three intended goals, supplies the fr aud that renders the statut e’s violation a CIMT, there are still two separate mental st ates - knowing and intentional. Beltran-Rubio also contends that vi ewing § 18-5-113(1 )(e)’s introductory clause as supplying a fraud requirement would mean that fraud inheres in “any crime . . . in which a falsehood is used to gain a benefit without regard to the materiality of the fact, the knowledge or la ck of knowledge on the part of the other party, the intent that someone act on the mi srepresentation, malevolence of intent or, of considerable importance he re, damages.” Aplt. Opening Br. at 15. But he cites no authority showing that the perceived shortc omings in the statute are relevant to whether a crime actually involves moral turpitude. See Rodriguez-Heredia , 639 F.3d at 1268-69 (stating that the absence in Utah’s identity-theft statute of a requirement that the fraudster procure something of va lue “appears irrelevant to whether fraud crimes are crimes of moral turpitude”). Moreover, as the BIA has explained, “where fraud is inherent in an offe nse, it is not necessary th at the statute prohibiting it include the usual phraseology concerning fra ud in order for it to involve moral turpitude.” Matter of Flores , 17 I. & N. Dec. 225, 228 (1980).- 7 - Finally, Beltran-Rubio argues that Colo rado’s criminal impersonation statute has been used to convict individuals for conduct that does not qualify as a CIMT. For instance, he cites People v. Bauer , 80 P.3d 896 (Colo. Ct. App. 2003), which upheld a conviction under § 18-5-113(1)(e) for an attorney pr acticing law with a suspended license. Beltran-Rub io contends that but for the “regulatory scheme for licensing lawyers, [Bauer] would have done nothing wrong.” Aplt. Reply Br. at 8. As the Colorado Court of Appeals observe d, however, Bauer deceived clients and unlawfully obtained money from them. Bauer , 80 P.3d at 898. Beltran-Rubio provides no convincing argument that such conduct is not morally turpitudinous. Beltran-Rubio also cites cases upholding impersonation convictions for giving a false name to police in order to avoid arrest. See, e.g. , People v. Borrego , 738 P.2d 59 (Colo. Ct. App. 1987). He asserts th at such conduct cannot be a CIMT because the defendants “are people who suffer from high anxiety or . . . fail to think things through quickly,” Aplt. Reply Br. at 9, and are only playing a “game of cat-andmouse” with the police, Aplt. Opening Br. at 20. To supp ort his assertion, he cites an unpublished decision by th is court holding that a viol ation of Utah’s obstructionof-justice statute is not a CIMT. See Vaquero-Cordero v. Holder , 498 F. App’x 760, 762 (10th Cir. 2012) (defe ndant pleaded guilty to obs tructing justice by “applying force to his front door to keep it closed wh ile officers attempted to enter”). But Vaquero-Cordero is not at all helpful to Beltran-R ubio, as that case did not involve Colorado’s impersonation statute and ev en observed that Vaquero-Cordero’s- 8 - obstruction of justice was not similar to crimes involvi ng dishonesty or a false statement, which are CIMTs. See id. at 765 (citing Padilla v. Gonzales , 397 F.3d 1016, 1019 (7th Cir. 2005) (holding that “knowingly furnishing false information” to police to prevent apprehension is a CIMT)). Beltran-Rubio’s attempts to undermine the categorical nature of criminal impersonation as a CIMT are without merit. C ONCLUSION The fraud that renders § 18-5-113(1)(e) a CIMT is inhere nt in knowingly assuming a fake identity or capacity to achieve an intended goal. We conclude, therefore, that there is no “realistic probab ility . . . that [Colorado] would apply its statute to conduct that” is not morally turpitudinous, Rodriguez-Heredia , 639 F.3d at 1267. Accordingly, we deny Be ltran-Rubio’s petition for review. Entered for the Court
Bobby R. Baldock Circuit Judge