Petition for Review
Before HARTZ, PHILLIPS, and McHUGH, Circuit Judges.
ORDER AND JUDGMENT [**]
GREGORY A. PHILLIPS, CIRCUIT JUDGE
Alejandro Tlalpan-Ochoa, a native and citizen of Mexico and nonpermanent resident of the United States, has filed a petition for 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. After determining that Mr. Tlalpan had been convicted of a "crime of domestic violence" as defined by 8 U.S.C. § 1227(a)(2)(E)(i), the BIA concluded that the conviction rendered him ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1)(C). We exercise jurisdiction under 8 U.S.C. § 1252(a)(1) and deny the petition for review.
Mr. Tlalpan has resided in the United States since 1989. His wife and two children are all United States citizens. He was charged with having entered the United States in 1989 without inspection. He conceded removability and applied for cancellation of removal. Following a hearing at which he was represented by counsel, the IJ determined that in 1996 Mr. Tlalpan had been convicted of an offense under § 273.5(a) of the California Penal Code and, further, concluded that the conviction was categorically "a crime of domestic violence." Accordingly, the IJ found Mr. Tlalpan ineligible for cancellation of removal and denied the application, but granted Mr. Tlalpan's request for voluntary departure.
Mr. Tlalpan appealed to the BIA, arguing that the IJ's order should be reversed because (1) Mr. Tlalpan was entitled to relief based on his pending petition seeking post-conviction relief-based on ineffective assistance of counsel-filed in California state court; and (2) Mr. Tlalpan's 1996 conviction was not for a crime of moral turpitude under 8 U.S.C. § 1227(a)(ii)(A)(i), supposedly thus rendering him eligible to be considered for cancellation of removal under § 1229b(b)(1)(C).
The BIA rejected Mr. Tlalpan's argument based on his pending post-conviction motion, noting that until the motion succeeded, the conviction required denial of the requested cancellation of removal. The BIA found Mr. Tlalpan's argument focusing on whether he had committed a crime of moral turpitude misdirected, given the IJ's disqualifying him from relief instead for his having committed a crime of domestic violence within the meaning of 8 U.S.C. §§ 1227(a)(2)(E) and 1229b(b)(1)(C). Although recognizing that the IJ did not specify what portion of § 1227(a)(2) on which he relied, the BIA found that the IJ had obviously relied on § 1227(a)(2)(E) because the IJ referred to "domestic violence" at the hearing and because Mr. Tlalpan's California domestic-violence conviction fell within this definition. Ruling that Mr. Tlalpan's conviction was indeed a crime of domestic violence under § 1227(a)(2)(E), the BIA declared Mr. Tlalpan ineligible for cancellation of removal. Accordingly, the BIA dismissed the appeal. Mr. Tlalpan now seeks review in this court.
To be eligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1), Mr. Tlalpan had the burden to show that (1) he had been continuously present in the United States for at least ten years preceding his application; (2) he had been a person of good moral character during that time; (3) he had not been convicted of certain crimes, including any crime of domestic violence; and (4) his removal would result in exceptional and extremely unusual hardship to a qualifying relative. See 8 U.S.C. § 1229a(c)(4) (placing burden of proof on alien to establish eligibility). Here, Mr. Tlalpan disputes just the third element.
The BIA issued a single-member decision affirming the IJ's order. As we begin our review, we consider that "although we will not affirm on grounds raised in the IJ decision 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 quotation marks omitted).
A. Crime of Domestic Violence
Mr. Tlalpan argues that the IJ failed to specify whether he found Mr. Tlalpan's conviction to be a crime involving moral turpitude, see § 1227(a)(2)(A)(i), or a crime of domestic violence, see § 1227(a)(2)(E)(i). Therefore, he maintains he is entitled to relief or, alternatively, that this court should address his arguments that he was not convicted of a crime of domestic violence, even though he did not raise those arguments in his brief to the BIA.
Mr. Tlalpan relies on a remark made by the IJ during a discussion with counsel at the removal hearing. Noting the absence of any documentation on the California conviction, the IJ speculated that the conviction might qualify as a crime involving moral turpitude. See Admin. R. at 110. But this remark preceded Mr. Tlalpan's attorney's locating and proffering a document entitled, "Results of Criminal and Traffic/Minor Offense Record Search, " which reflected Mr. Tlalpan's 1996 conviction for violating § 273.5(a). Thereafter, the IJ stated during the hearing that he would "find that the domestic violence conviction in California is categorically a crime of domestic violence, " id. at 126, and he would deny relief "because of the domestic violence conviction, " id. at 128. In addition, the IJ further announced in his oral decision that the conviction was "categorically a crime of domestic violence." Id. at 88. The BIA determined that the IJ had concluded that Mr. ...