Gutierrez v. Sessions, No. 17-3749 (6th Cir. 2018)Annotate this Case
Gutierrez, a citizen of Bolivia, has been a U.S. Lawful Permanent Resident since her 1980 admission. In 2012, she pleaded guilty to credit card theft, Virginia Code 18.2-192(1). She had prior convictions for petty larceny and for prescription fraud, DHS initiated removal under 8 U.S.C. 1227(a)(2)(A)(ii), based on her convictions for petty larceny and prescription fraud, as crimes involving moral turpitude. Gutierrez applied for cancellation of removal under 8 U.S.C. 1229b(a). DHS argued statutory ineligibility because she had been convicted of an aggravated felony in 2012, triggering 8 U.S.C. 1101(a)(43)(G). An IJ concluded that Gutierrez was ineligible for relief. The BIA employed the categorical approach; found Virginia Code 18.2-192(1) overbroad because the statute contained at least one subdivision, under which “a person can be convicted . . . absent proof of an ‘intent to deprive’ the rightful owner of the property.” The BIA then determined that the section was divisible because its subdivisions “criminalize[d] diverse acts, committed with different mental states." The BIA reasoned, given that the evidence that the 8 U.S.C. 1229b(a)(3) “aggravated felony bar ‘may apply’,” applied 8 C.F.R. 1240.8(d) and required Gutierrez to “prove by a preponderance of the evidence that the bar [was] inapplicable.” The Sixth Circuit affirmed. Where an alien was convicted under a divisible criminal statute and the record is inconclusive as to whether the conviction was for an aggravated felony, such inconclusiveness defeats the alien’s eligibility for relief.