Tuesday, July 24, 2018

Colorado first-degree trespass not a crime of moral turpitude; Venzor-Granillo overruled

Lujan-Jimenez v. Sessions, 839 F.3d 704 (10th Cir. 2018): Lujan appealed a BIA final order of removal. The panel found the BIA incorrectly concluded Lujan’s Colorado conviction for first degree criminal trespass was a crime of moral turpitude. That offense can be committed by unlawfully entering a “motor vehicle with intent to commit a crime therein.” The BIA held that the particular crime intended is an element of the offense and therefore, the statute was divisible. The panel disagreed, it said that according to the Colorado Supreme Court, an information charging only that a defendant intended to commit “a crime” contains “all essential elements of the crime of first degree criminal trespass.” It added that in other Colorado cases involving similar crimes, juries have been instructed as to alternative ulterior offenses (e.g. either the accused intended to commit theft or arson). The panel concluded that because the crime intended was a means by which the trespass offense is committed, the Colorado statute was not divisible as to the particular ulterior offense. It also said that a case which held the opposite, United States v. Venzor-Granillo, 668 F.3d 1224 (10th Cir. 2012), cannot be reconciled with the approach to divisibility set forth in Mathis v. United States, 136 S. Ct. 2243, 2249 (2016) and is therefore no longer good law. Colorado first degree criminal trespass sweeps more broadly that the definition of a crime involving moral turpitude.