Marquez Garcia v. Holder, No. 08-9579 (10th Cir., October 27, 2009)
The focus of this case is on an ambiguous record and the burden on an alien to prove that he has not committed a crime of moral turpitude. In the instant case, the petitioner, a native of El Salvador who entered the U.S. illegally in 1997, had pled guilty to third-degree assault in Colorado in 2003.
An alien who commits a “crime of moral turpitude” is ineligible for discretionary relief such as cancellation of removal or temporary protected status. Marquez, as he was referred to in the opinion, entered his plea on a poorly translated Spanish form, and as a result, the record was unclear on whether he was pleading guilty to knowingly or recklessly causing bodily injury. This component is critical in determining whether a crime of moral turpitude has been committed.
Both the government and petitioner conceded that the record was inconclusive regarding intent, and both parties claimed that this ambiguity favored them. The court addressed the shifting burden in a removal case. Where a lawfully admitted alien is charged with removability as a result of a conviction, the government must prove, by clear and convincing evidence, that the alien is removable. In the instant case, though, removability is conceded by the petitioner, and the burden therefore shifts to him “to prove the absence of any impediment to discretionary relief.” The Court held that, despite the record’s ambiguity, Marquez-Garcia had not proven he was eligible for discretionary relief. Despite the fact that the record was ambiguous through no fault of his own, Marquez had failed to meet his burden, and the court denied his petition.