UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

INOCENCIO ESPARZA-RECENDEZ, a/k/a Inocencio Reecen Esparza, a/k/a Inocencio Recden Esparza, a/k/a Inocencio Recd en Jr. Esparza, Petitioner,

v. ERIC H. HOLDER, JR., United States Attorney General, Respondent. No. 12-9564 (Petition for Review)

ORDER AND JUDGMENT *

Before BRISCOE , Chief Judge, HOLLOWAY , Senior Circuit Judge, and TYMKOVICH , Circuit Judge.
Inocencio Esparza-Recendez petitions fo r review of a Board of Immigration Appeals (BIA) decision affirming an immigra tion judge’s (IJ) order of removal. The IJ concluded, and the BIA agreed, that Mr. Esparza-Recendez was removable as an

* After examining the briefs and appella te record, this pa nel 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 

### May 20, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - alien convicted of two or more crimes involving moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(ii), and ineligib le for cancellation of remova l as an aggravated felon under 8 U.S.C. § 1229(b). In his pe tition for review, Mr. Esparza-Recendez challenges these legal determin ations, as well as the IJ’s denial of a continuance to pursue post-conviction relief in state court. We deny the petition for review.
I. Mr. Esparza-Recendez is a native and citi zen of Mexico. He was admitted into the United States in March 1987 as a lawful permanent resident and subsequently was convicted of several crim inal offenses. Relevant here, he pleaded guilty in August 1995 to attempted aggravated burgl ary in violation of Utah Code Ann. § 76-6-203, a third degree felony for wh ich he was sentenced to a five-year suspended term, plus 180 days in jail. In Janua ry 2009, Mr. Esparza-Recendez pleaded guilty to retail thef t in violation of Salt Lake City Ordinance 11.36.060, a class B misdemeanor for which he was sentenced to three days in jail. And, in March 2009, Mr. Esparza-Recendez pleaded guilty to the crimes of attempted forgery in violation of Utah Code Ann. § 76-6-501 and attempted theft by deception in violation of Utah Code Ann. § 76- 6-405, both class A misdem eanors for which he was sentenced to concurrent suspended terms of 365 days. Based on his attempt convictions, th e Department of Homeland Security (DHS) charged Mr. Esparza-Recendez w ith being removable under 8 U.S.C. § 1227(a)(2)(A)(iii) as an aggravated felon. See 8 U.S.C. § 1101(a)(43)(U) (defining- 3 - “aggravated felony” as “an attempt or c onspiracy to commit” certain enumerated offenses, including theft, burglary, and fo rgery). At a hearing before an IJ, Mr. Esparza-Recendez denied the charge s and sought a continuance to pursue post-conviction relief in state court pursuant to Padilla v. Kentucky , 559 U.S. 356 (2010). The IJ denied a continuance, sustained the charges, and ordered him removed to Mexico. On appeal to the BIA, Mr. Esparza- Recendez filed a motion for remand, to which he attached newly-obtai ned orders from a Utah cour t indicating that his three attempt convictions had been reduced to class B misdem eanors. Based on this new evidence, Mr. Esparza-Recendez argued he was no longer an aggravated felon and instead was eligible for cancellation of removal. The BIA granted the motion for remand, but back before the IJ, the govern ment changed course: DHS withdrew the charge of removability unde r § 1227(a)(2)(A)(iii) and s ubstituted a new charge under 8 U.S.C. § 1227(a)(2)(A)(ii) for having been convicted of two or more crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. DHS asserted that in add ition to his three attempt c onvictions for aggravated burglary, forgery, and theft by decepti on, Mr. Esparza-Recendez’s 2009 conviction for retail theft qualified as a cr ime involving moral turpitude. The IJ sustained this new charge of removal, ruling that DHS successfully showed by clear and convincing evidence that the convictions for retail theft and attempted theft by deception were crimes of moral turpitude. The IJ also determined- 4 - that Mr. Esparza-Recendez failed to esta blish his eligibility for cancellation of removal because it remained unclear why hi s convictions for attempted forgery and theft by deception had been reduced to class B misdemeanors. The IJ explained that under Matter of Pickering , 23 I. & N. Dec. 621 (BIA 2003), reversed on other grounds sub nom., Pi ckering v. Gonzales , 465 F.3d 263 (6th Cir. 2006), criminal convictions vacated due to substantive or procedural def ects in the underlying proceeding may not serve as a basis for removal, but convictions vacated or expunged through post-convicti on rehabilitative procedures may. According to the IJ, Mr. Esparza-Recendez’s conviction fo r attempted aggravated burglary was no longer an aggravated felony because it was reduced under Utah Code Ann. § 76-3-402(1), which does not involve post -conviction rehabilitative procedures. But the convictions for attempted forgery and theft by deception remained aggravated felonies because the Utah court orde r reducing those offenses to class B misdemeanors did not clearly indicate the sp ecific statutory basis for the reduction. And since Mr. Esparza-Recendez bore the burde n of showing his elig ibility for relief, the IJ ruled that he failed to show he was entitled to cancellation of removal. Mr. Esparza-Recendez moved for a continuan ce so he might obtain clarification from the Utah court, but the IJ denied his request. Once again, Mr. Esparza-Recendez appealed to the BIA. He first challenged the IJ’s conclusion that re tail theft and theft by decep tion are crimes of moral turpitude. He further contes ted the IJ’s denial of cance llation of removal, claiming- 5 - his convictions for attempte d forgery and theft by decep tion are not disqualifying aggravated felonies. In a new argument, Mr. Esparza-Recendez also claimed his theft and forgery offenses i nvolved fraud and deceit, meani ng they also had to meet the $10,000 minimum loss requirement of § 1101(a)(43)(M)(i). Finally, he insisted the IJ erred in denying a continuance. A single member of th e BIA rejected these arguments and affirmed the order of rem oval. This petition fo r review followed.
II. Where, as here, a single member of the BIA issues a decision affirming the IJ’s removal order, “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 ma rks omitted). However, when the BIA incorporates th e IJ’s rationale, “[w]e may c onsult the IJ’s decision to give substance to th e BIA’s reasoning.” Razkane v. Holder , 562 F.3d 1283, 1287 (10th Cir. 2009). We revi ew the BIA’s legal conclusions de novo and factual findings for substantial evidence. Id. A. Basis for Removal-Crimes of Moral Turpitude We first consider Mr. Es parza-Recendez’s challenge to the basis for his removal—his convictions for two or more cr imes of moral turpit ude not arising out of a single scheme of criminal misconduct. See 8 U.S.C. § 1227(a)(2)(A)(ii). To sustain this charge, DHS relied on his convic tions for retail theft and attempted theft- 6 - by deception. The retail theft conviction wa s for violating Salt Lake City Ordinance 11.36.060, which provides that a person commits retail theft when he knowingly [t]akes possession of, con ceals, carries away, tran sfers or causes to be carried away or transferred, any merc handise displayed, held, stored or offered for sale in a retail mercantile establishment with the intention of retaining such merchandise, or with the intention of depriving the merchant permanently of the posse ssion, use or benefit of such merchandise without paying the re tail value of such merchandise. The conviction for theft by deception was pursuant to Utah Code Ann. § 76-6-405, which states: A person commits theft if the person obtains or exercises control over property of another person: (i) by deception; and (ii) with a purpose to deprive the other person of property. Mr. Esparza-Recendez suggests these are not crimes of mo ral turpitude because there is no element of permanent deprivation. We determine whether the convictions constitute crimes of moral turpitude by analyzing the el ements of the state-law offenses “using the categoric al approach set forth in Taylor v. United States , 495 U.S. 575 (1990).” Efagene v. Holder , 642 F.3d 918, 921 (10th Cir. 2011). A crime of moral turpitude “refers to condu ct which is inherently base, vile, or depraved, contrary to accepted rules of morality and duties owed between man and man, either one’s fellow ma n or society in general.” Id. “It is well settled that theft or larceny offenses involve moral turpitude.” Matter of Jurado-Delgado , 24 I. & N. Dec. 29, 33 (BIA 2006); see also Briseno-Flores v. Att’y Gen. , 492 F.3d 226, 228 (3d Cir. 2007) (recognizing that “theft or larceny, whether grand or petty, has always- 7 - been held to involve moral turpitud e” (internal quotation marks omitted)); United States v. Esparza-Ponce , 193 F.3d 1133, 1136 (9th Cir. 1999) (holding that theft is a crime of moral turpitude and virtually ev ery circuit considers it a crime of moral turpitude for immigration purposes). Although the BIA cited several agency decisions for the proposition that theft ordi narily involves moral turpitude only when a permanent taking is intended, e.g., Matter of Grazley , 14 I. & N. Dec. 330, 333 (BIA 1973), the BIA has rec ognized that “offenses invol ving theft of goods from a retail establishment are crimes involving moral turpitude,” Jurado-Delgado , 24 I. & N. Dec. at 33. Moreover, the theft by deception statut e employs the phrase “purpose to deprive,” which the BIA r ecognized means “[t]o withhold property permanently or for so extended a period or to use under such circumstances that a substantial portion of its economic value, or of the use and benefit thereof, would be lost.” Utah Code Ann. § 76- 6-401(3)(a). Thus, even if there must be an intent to permanently deprive for a thef t offense to constitute a cr ime of moral turpitude, we would agree that Mr. Esparza-Recendez’s crimes satisfied that requirement. All this is beside the point, howeve r, because Mr. Esparza-Recendez must show a “realistic probability, not a theore tical possibility, that the State would apply its statute to conduct that falls outside the generi c definition of a crime.” Gonzales v. Duenas-Alvarez , 549 U.S. 183, 193 (2007); see also Moncrieffe v. Holder , 133 S. Ct. 1678, 1693 (20 13) (stating that “a no ncitizen would have to demonstrate” an actual scenar io in which the State offens e would be prosecuted in- 8 - the manner alleged). This me ans that Mr. Esparza-Recend ez “must at least point to his own case or other cases in which the state courts in fact did apply the statute[s] in the special (nongeneric) manne r for which he argues.” Duenas-Alvarez , 549 U.S. at 193. And on this score, his argument fails. Indeed, his br ief is conspicuously silent with regard to whether his convictions or any others ever resulted from a prosecution for a temporary taking. Instead, Mr. Espa rza-Recendez merely hy pothesizes that the

statutes could be applied to such conduct. But su ch postulating is insufficient to show the statutes here apply to conduc t beyond the scope of crimes of moral turpitude. Accordingly, the BIA co rrectly determined that Mr. Esparza-Recendez’s convictions for retail thef t and attempted theft by decep tion constitute crimes of moral turpitude.
B. Cancellation of Removal We next consider Mr. Esparza-Recendez’s claim that the IJ erred in finding he had two aggravated felonies that rendered him ineligible for cancellation of removal. In analyzing this issue, it is important to recall that wh ere, as here, an alien is removable and seeks discreti onary relief, it is the alien’s burden to show by a preponderance of the evidence that there is no bar to relief. See 8 C.F.R. § 1240.8(d); Garcia v. Holder , 584 F.3d 1288, 1289-90 (10th Cir. 2009). Thus, it is Mr. Esparza-Recendez who must show he is eligible for cancellati on of removal.- 9 - Under 8 U.S.C. § 1229b(a)(3), a lawful permanent resident is statutorily ineligible for cancellati on of removal if he or she is an aggravated felon. Initially, Mr. Esparza-Recendez had three disqua lifying aggravated felonies—his 1995 conviction for attempted aggravated burglar y and his 2009 convic tions for attempted forgery and theft by deception. See 8 U.S.C. § 1101(a)(43)(U) (defining “aggravated felony” as an attempt to commit certain enumerated offenses); § 1101(a)(43)(G) (classifying theft and burglar y offenses as enumerated aggravated felonies); § 1101(a)(43)(R) (classifying o ffenses relating to forgery as enumerated aggravated felonies). After the Utah criminal court reduced these convictions to class B misdemeanors, the BIA remande d the case to the IJ, who ultimately concluded that the attempted forgery and theft by d eception convictions still rendered Mr. Esparza-Recendez inelig ible for cancellation of removal. Then, as now, Mr. Esparza-Recendez disputed that claim, maintaining that all of his attempt convictions had been reduced to class B misdemeanors and t hus could not be aggravated felonies. Additi onally, he argues that these convictions involve both theft and fraud, and so must also satisfy the $10,000 minimum loss requirement for fraud offenses found at § 1101(a)(43)(M)(i). 1

1 We have no authority to consider this unexhausted claim because Mr. Esparza-Recendez failed to raise it before the IJ, and the BIA therefore declined to consider it. See Garcia-Carbajal v. Holder , 625 F.3d 1233, 1236-38 (10th Cir. 2010) (discussing court’s lack of authority to consider unexhausted administrative arguments). Despite our lack of aut hority, Mr. Esparza-Recendez urges us to consider the issue in the first instance, claiming he could not have known the IJ (continued)- 10 - The BIA has recognized “a significant di stinction between convictions vacated on the basis of a procedural or substantiv e defect in the underl ying proceedings and those vacated because of post-convicti on events, such as rehabilitation or immigration hardships.” Matter of Pickering , 23 I. & N. Dec. at 624. It is “now fairly well-settled” that criminal convictions vacated or e xpunged due to post-conviction events, such as “immigration-related hardship” and “expungements for rehabilitative reasons, . . . still allow [for] removal,” but “vacaturs on the basis of a procedural or substantive defect in the underlying proceedings . . . do not.” Cruz-Garza v. Ashcroft , 396 F.3d 1125, 1128-29 (10th Cir. 2005) (internal quotation marks and brackets omitted).
In Cruz-Garza , we considered the same statut ory authority for the reductions in offense levels here, Utah Code Ann. § 76-3-402. We observed that subsections (1) and (3) of § 76-3-402 permit a court to reduce an offense by two degrees “if the court concludes that it is ‘unduly harsh’ in light of ‘the nature and circumstances of the offense’ and ‘the hist ory and character of the de fendant.’” 396 F.3d at 1131 (quoting § 76-3-402(1)). Such considerations, we explained, “clearly focus on matters leading up to and encompassed wi thin the judgment of conviction, not on post-conviction events relating to the subseque nt success or failure of rehabilitation.”

would fail to consider whether his convic tions for attempted forgery and attempted theft by deception must satisfy § 1101(a )(43)(M)(i). But Mr. Esparza-Recendez knew DHS’s position on his request for can cellation of removal, and nothing stopped him from raising this issue to the IJ.- 11 - Id. But subsection (2), we noted, “deals specifically with probation compliance and does not involve any consid eration of the offense a nd offender characteristics.” 2
Id. at 1131 n.5. The practical implication fo r Mr. Esparza-Recendez, then, is that any reduction in offense level pursuant to subs ections (1) or (3) could preserve his eligibility for cancellation of removal, but a reduction pur suant to the rehabilitative procedures of subsection (2) would not. Mr. Esparza-Recendez obtained an am ended order from the Utah court specifically indicating that his attempted aggravated bur glary conviction was reduced to a class B misdemeanor pursu ant to subsection (1) of Utah Code Ann. § 76-3-402.
See Admin R. at 411. Under Pickering and Cruz-Garza , that order was legally effective for purposes of cancellation of removal to reduce Mr. Esparza-Recendez’s conviction from a disqualifyi ng third degree felony to a still-eligible class B misdemeanor. But the Utah court order reduci ng his convictions for attempted forgery and theft by deception did not speci fy which subsection of § 76-3-402 the

2 Subsection (2) of Utah Code Ann. § 76-3-402 provides: If the court suspends the executi on of the sentence and places the defendant on probation, whether or not the defendant is committed to jail as a condition of probation, the court may enter a judgment of conviction for the next lower degree of offense: (a) af ter the defendant has been successfully discharged from probation; (b) upon motion and notice to the prosecuting attorney; (c ) after reasonable effort has been made by the prosecuting attorney to provide notice to any victims; (d) after a hearing, if requested by either party under Subsection (2)(c); and (e) if the court finds entering a judgment of conviction for the next lower degree of offense is in the interest of justice.- 12 - reduction was pursuant to. Although Mr. Es parza-Recendez sought clarification from the state court, he could produce only th e stipulated motion for reduction, which invoked subsection (2) of § 76-3-402. Id. at 538. This strongly suggests that the convictions for attempted forgery and thef t by deception were re duced due to some post-conviction event, not due to some de fect in the underlyi ng proceedings. The consequence of this is that the convictions still served as disqualifying aggravated felonies for purposes of re lief from removal because the ambiguity works against Mr. Esparza-Recendez. Indeed, he bore th e burden to establish his eligibility for relief, see 8 C.F.R. § 1240.8(d), and the lack of cl arity in the Utah order demonstrates he failed to satisfy that burden, see Garcia , 584 F.3d at 1290 (“The fact that [respondent] is not to blame for the ambi guity surrounding his criminal conviction does not relieve him of his obligation to pr ove eligibility for discretionary relief.”). Accordingly, Mr. Esparza-Recendez fail ed to show he was eligible for cancellation of removal. 3

3 Mr. Esparza-Recendez also urges us to look past his co nvictions to his sentences, which he says are entitled to “full faith and credit” for immigration purposes. Pet’r Br. at 21. This argument conflates two se parate inquiries, however. In Matter of Cota-Vargas , 23 I. & N. Dec. 849, 851-52 (BIA 2005), the BIA distinguished Pickering , explaining that its analysis for discerning a “conviction” under 8 U.S.C. § 1101(a)(48)(A) is distinct from the analysis us ed for determining the “term of imprisonment” under § 1101(a )(48)(B). Mr. Esparza-Recendez invokes Cota-Vargas , asserting that his term s of imprisonment govern the analysis, but this overlooks his failure to show that his reduced convictions were legally effective in the first place under Pickering

.- 13 - C. Continuance Mr. Esparza-Recendez’s final contention is that the IJ erre d in denying him a continuance to pursue an order from Utah c ourt clarifying the specific grounds for his offense reductions. As a preliminary matt er, DHS says we lack jurisdiction to consider this issue, but th is argument is foreclosed by Jimenez-Guzman v. Holder , where we explained that a decision made discretionary by regulation does not fall under the general jurisdictional bar of 8 U.S.C. § 1252(a)(2)(B)( ii). 642 F.3d 1294, 1297 (10th Cir. 2011) (citing Kucana v. Holder , 130 S. Ct. 827, 831 (2010)). Our review of the IJ’s denial of a con tinuance is for an abuse of discretion. Id. We perceive no error. Following the BIA’s remand, the IJ con tinued the hearing no less than four times in a three-month peri od so as to enable the pa rties to determine whether Mr. Esparza-Recendez had been convicted of two or more crimes of moral turpitude. Mr. Esparza-Recendez indicated he would be able to obtain an order clarifying that his attempted forgery and theft by deception convictions were reduced on non-rehabilitative grounds, but he never did. Then, at the final hearing before the IJ, Mr. Esparza-Recendez sought another one-w eek continuance, but the IJ denied the motion because he had already con tinued the hearing several times and Mr. Esparza-Recendez remained unable to obt ain any clarifying order. Under these circumstances, there was no ab use of discretion. We ha ve said that “[p]ending post-conviction motions or other collateral attacks do not negate the finality of a- 14 - conviction for immigration pur poses unless and until the c onviction is overturned.” Id. Because Mr. Esparza-Recendez’s convic tions remained valid and there was no indication they had been effectively redu ced for immigration pur poses or otherwise overturned, there was no good cause for a continuance. See 8 C.F.R. § 1003.29. Accordingly, the IJ acte d within his discretion in denying a continuance. The petition for review is denied. Entered for the Court
Timothy M. Tymkovich Circuit Judge