Case: 08-60626 Document: 00511141181 Page: 1 Date Filed: 06/11/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 11, 2010
No. 08-60626 Lyle W. Cayce
Clerk
JORGE ALBERTO PULIDO-ALATORRE
Petitioner
v.
ERIC H. HOLDER, JR., US ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A70 595 146
Before HIGGINBOTHAM and STEWART, Circuit Judges, and FELDMAN,*
District Judge.
PER CURIAM:**
Jorge Alberto Pulido-Alatorre, a native and citizen of Mexico, has
petitioned for review of a final order of the Board of Immigration Appeals (BIA)
denying his motions to reconsider, reopen, and stay the order of removal; the
BIA had dismissed Pulido-Alatorre’s appeal of the Immigration Judge’s order,
which found that Pulido-Alatorre’s convictions were crimes involving moral
*
District Judge of the Eastern District of Louisiana, sitting by designation.
**
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in 5th
Cir. R. 47.5.4.
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turpitude and denied him cancellation of removal. The IJ ruled that Pulido-
Alatorre is subject to removal on the basis of two criminal convictions in Texas,
and that he is ineligible for cancellation of removal. On appeal, the BIA
affirmed. Pulido-Alatorre did not seek judicial review of the BIA’s order, but
instead filed motions to reconsider, reopen, and stay the order of removal. The
BIA denied Pulido-Alatorre’s motions to reconsider, reopen, and stay the order
of removal; that BIA order is the subject of this timely petition for review.
Pulido-Alatorre asserts the following issues on appeal: (1) whether
Pulidos-Alatorre’s 2004 Texas state conviction of a misdemeanor charge of
burglary of a motor vehicle under Tex. Penal Code § 30.04 is a crime involving
moral turpitude (CIMT); (2) whether his 2005 Texas state conviction for evading
arrest with a vehicle under Tex. Penal Code § 38.04 is a CIMT; (3) whether he
is eligible for cancellation of removal; (4) whether he is eligible for a hardship
waiver of removal; and (5) whether he is eligible for a petty crime waiver.
I
A.
The petitioner first seeks review of the BIA’s upholding of the IJ’s
judgment that the petitioner is removable under the INA for committing two
CIMTs, as well as committing such offense within five years of entry. Pulido-
Alatorre argues on appeal that neither of his Texas state convictions -- for
burglary of a motor vehicle and for evading arrest with a vehicle -- constitute a
CIMT. An alien is deportable if he has been convicted of two or more crimes
involving moral turpitude. 8 U.S.C. § 1227(a)(2)(A)(ii). What constitutes a
CIMT is left up to the BIA and the federal courts. We apply a two-part standard
of review to the BIA’s conclusion that a non-citizen has committed a crime
involving moral turpitude. Smalley v. Ashcroft, 354 F.3d 332, 335 (5 th Cir. 2003).
“First, we accord ‘substantial deference to the BIA’s interpretation of the INA’
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and its definition of the phrase ‘moral turpitude.’1 Second, we review de novo
whether the elements of a state or federal crime fit the BIA’s definition of a
CIMT.” Id. at 335-36 (citations omitted). The BIA’s determination of what
constitutes moral turpitude must be upheld if that determination is reasonable.
Hamdan v. INS, 98 F.3d 183, 185 (5 th Cir. 1996).
To determine whether a particular statute meets the BIA’s
definition, the Court utilizes a categorical approach, which focuses "on the
inherent nature of the crime, as defined in the statute..., rather than the
circumstances surrounding the particular transgression." Amouzadeh, 467 F.3d
at 455 (internal quotation marks and citation omitted). This categorical
approach requires the Court to examine statutory text as interpreted by the
state courts, without regard to the circumstances surrounding the offender’s
violation. Id. In examining the statutory text, the Court evaluates “the
minimum criminal conduct necessary to sustain a conviction under the
statute[;]” an offense will not be considered a CIMT if it could include crimes
“not inherently entailing moral turpitude.” Id. (internal quotation marks and
citations omitted). However, if the statute does not categorically involve moral
1
The BIA has defined moral turpitude as follows:
Moral turpitude refers generally to conduct that shocks the
public conscience as being inherently base, vile, or depraved, and
contrary to the accepted rules of morality and the duties owed
between persons or to society in general. Moral turpitude has
been defined as an act which is per se morally reprehensible and
intrinsically wrong, or malum in se, so it is the nature of the act
itself and not the statutory prohibition of it which renders a
crime one of moral turpitude. Among the tests to determine if a
crime involves moral turpitude is whether the act is accompanied
by a vicious motive or a corrupt mind.
Amouzadeh v. Winfrey, 467 F.3d 451, 455 (5th Cir. 2006) (internal quotation marks and
citation omitted).
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turpitude -- if the statute is divisible into discrete subsections of acts, where
some constitute CIMT and some do not -- the Court applies an exception to the
categorical approach: in that situation, the Court looks to the alien’s record of
conviction to determine whether he pleaded guilty to elements that constitute
a CIMT. Id.
Considering the record as a whole, we find that the BIA did not err
in finding that Pulido-Alatorre's 2004 conviction for violating Tex. Penal Code
30.04(a) was a CIMT. Section 30.04 of the Texas Penal Code provides: "A person
commits an offense if, without the effective consent of the owner, he breaks into
or enters a vehicle or any part of the vehicle with intent to commit any felony or
theft." (emphasis added). Applying the categorical approach, the BIA was
reasonable in determining that petitioner’s crime is one involving moral
turpitude; in an analogous context, this Court has determined that burglary of
a car is a "crime of violence." Cf. United States v. Delgado-Enriquez, 188 F.3d
592, 595 (5th Cir. 1999); United States v. Ramos-Garcia, 95 F.3d 369, 371 (5 th Cir.
1996). Moreover, even if we divided the statute such that intent to commit theft
was a component of burglary of a vehicle, the BIA's determination that Pulido-
Alatorre's conviction was a CIMT was reasonable. Because the record of
conviction shows that Pulido-Alatorre pleaded guilty to the charge of breaking
and entering into a motor vehicle with intent to commit a theft, the BIA did not
err in finding that Texas Penal Code 30.04(a) was a CIMT.
B.
Nor did the BIA err in finding that Pulido-Alatorre's 2005 conviction
of evading arrest with a vehicle, a violation of Tex. Penal Code 38.04(a), was a
CIMT. Section 38.04 of the Texas Criminal Code provides:
(a) A person commits an offense if he intentionally flees
from a person he knows is a peace officer attempting to
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lawfully arrest or detain him.
(b) An offense under this section is a Class B
misdemeanor, except that the offense is:
(1) a state jail felony if
(A) the actor has been previously convicted under this
section; or
(B) the actor uses a vehicle while the actor is in flight
and the actor has not been previously convicted under
this section.
The categorical approach appears inapplicable because the statute as a whole
encompasses some acts that do, and some acts that do not, involve moral
turpitude. Looking to the record of conviction, Pulido-Alatorre pleaded guilty to
"unlawfully intentionally flee[ing] from ... a peace officer ... lawfully attempting
to detain him, and he used a motor vehicle while in flight." Thus, Pulido-
Alatorre pleaded guilty to that discrete subsection of the statute that
criminalizes intentional flight with a vehicle, which the BIA determined was a
CIMT because "such conduct reflects an awareness and conscious disregard of
a substantial and unjustifiable risk." This Court finds that the BIA's
determination that Pulido-Alatorre's conviction constituted a CIMT was
reasonable. Accordingly, considering the record as a whole, Pulido-Alatorre was
convicted of two CIMTs that were not part of the same scheme; thus, the BIA
properly upheld the IJ's ruling that Pulido-Alataorre is deportable under §
237(a)(2)(A)(ii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(ii).
Furthermore, the BIA did not err in affirming that Pulido-Alatorre
is not eligible for cancellation of removal under the "petty offense" exception.
This exception does not apply to him because we have upheld the BIA's
determination that Pulido-Alatorre committed two CIMTs. See INA §
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212(a)(2)(A)(ii), 8 U.S.C. § 1182(a)(2)(A)(ii) ("[inadmissibility for conviction of a
CIMT] shall not apply to an alien who committed only one crime if...").
II
The petitioner next requests that we review whether the BIA erred
in affirming the IJ's finding that the petitioner was not eligible for cancellation
of removal under INA § 240 A(a), 8 U.S.C. § 1229b(a). This requires a
determination as to whether, upon the time of his priority date for adjustment
of status as a legal permanent resident, he is able under the law to impute the
residency of his father as his own in order to meet the seven years residency
requirement required for eligibility for cancellation of removal where the
petitioner was a minor throughout such period of ten years.
The BIA's factual conclusions are reviewed for substantial evidence
and legal conclusions are reviewed de novo. The Court gives deference to the
BIA's interpretations of ambiguous provisions of the INA. Avilez-Granados v.
Gonzales, 481 F.3d 869, 871 (5th Cir. 2007). In interpreting the INA, under the
Chevron framework, the Court first determines "whether Congress has directly
spoken to the precise question at issue. If the intent of Congress is clear, that
is the end of the matter; for the court, as well as the agency, must give effect to
the unambiguously expressed intent of Congress." Chevron U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). On the other hand,
if Congress has left a gap in the statute, "the question for the court is whether
the agency's answer is based on a permissible construction of the statute." Id.
at 843. "Needless to say, plain statutory language is the most instructive and
reliable indicator of Congressional intent." Martinez v. Mukasey, 519 F.3d 532,
541 (5th Cir. 2008)(citing White v. INS, 75 F.3d 213, 215 (5 th Cir. 1996)).
The cancellation of removal for permanent residents provision
provides:
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(a) Cancellation of removal for certain permanent
residents
The Attorney General may cancel removal in the
case of an alien who is inadmissable or
deportable from the United States if the alien--
(1) has been an alien lawfully admitted for
permanent residence for not less than 5
years,
(2) has resided in the United States
continuously for 7 years after having been
admitted in any status, and
(3) has not been convicted of any
aggravated felony.
INA § 240A(a), 8 U.S.C. § 1229b(a). "[A]dmitted" means "the lawful entry of the
alien into the United States after inspection and authorization by an
immigration officer." 8 U.S.C. § 1101(a)(13)(A). If an alien during that seven-
year period commits a CIMT, then the Attorney General can no longer cancel his
removal. The only way Pulido-Alatorre can invoke this cancellation of removal
provision is if it is permissible to impute to him his father's years of lawful
permanent residency. Accordingly, we consider Pulido-Alatorre's argument that
the BIA should have imputed to him his father's years of lawful permanent
residency because he was a minor who resided with his father until his
admission in 2002. A divided panel of the Ninth Circuit has determined that the
statute is ambiguous and that the BIA's interpretation (that the petitioner could
not impute his mother's lawful permanent resident status in order to meet the
requirement for cancellation of removal) was unreasonable and, therefore, not
entitled to deference. See Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1016 (9 th
Cir. 2005). The BIA has since reaffirmed its position, that imputation is not
permissible, and has thus limited application of Cuevas-Gaspar to only §
240(a)(2) and to only the Ninth Circuit. See In re Escobar, 241 I. & N. Dec. 231,
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235 (BIA 2007). 2 The Third Circuit has disagreed with the Ninth Circuit; the
Third Circuit, like the Ninth Circuit, first determined that the statute was
ambiguous, but then parted ways with the Ninth Circuit when it upheld the
BIA's interpretation of the INA as reasonable. See Augustin v. Attorney
General, 520 F.3d 264, 268 (3d Cir. 2008).
We decline to follow the Ninth Circuit. As a preliminary matter, we
note that Cuevas-Gaspar is not binding precedent; moreover, the Ninth Circuit
appears impermissibly to have expanded the INA's removal cancellation
provision. Instead, we favor the Third Circuit's reasoning in Augustin. That is,
even if we determined that the statute was ambiguous, which it does not appear
to be and which we need not decide today, we favor the Third Circuit's reasoning
in upholding as a permissible interpretation of the statute the BIA's refusal to
impute the parent's years of residence. As the Third Circuit noted, the BIA's
position is "permissible because it is a straightforward application of the
statutory requirements. [The Third Circuit could not] find the BIA unreasonable
for failing to read into the statute an exception seemingly at odds with the
statute's requirements." Augustin, 520 F.3d at 270.
III
Finally, we consider whether the BIA erred in denying Pulido-
Alatorre's motion to reopen based on its determination that he had failed to show
that he would be prima facie eligible for adjustment of status. Pulido-Alatorre,
as the moving party, bears a heavy burden to reopen a removal case. See
Altamirano-Lopez v. Gonzales, 435 F.3d 547, 549-50 (5th Cir. 2006). The BIA has
2
The Ninth Circuit recently overruled In re Escobar. Escobar v. Holder, 567
th
F.3d 466 (9 Cir. 2009)(holding that rationale and holding of Cuevas-Gaspar equally applied
to the statute's additional five-year permanent residence requirement). In re Escobar remains
persuasive authority as an expression of the BIA's position that applies outside the Ninth
Circuit.
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broad discretion over such motions and an order denying reopening is reviewed
under a "highly deferential abuse-of-discretion standard." Zhao v. Gonzales, 404
F.3d 295, 303 (5th Cir. 2005). We find no error. Pulido-Alatorre failed to comply
with the procedural requirements for filing a motion to reopen; the BIA
determined that he failed to append an application for adjustment of status to
his motion to reopen as required by 8 C.F.R. § 1003.2(c)(1). His motion is
procedurally defaulted. See Tapia-Martinez v. Gonzales, 142 Fed.App'x. 882,
884-85 (6th Cir. 2005)(affirming BIA's denial of non-citizen's motion to reopen
where it was not supported with a copy of the application for relief requested).
Furthermore, the petitioner failed to make a showing that, if permission to
reapply were granted, he would be eligible for admission. Accordingly, we find
that the BIA did not abuse its discretion in denying Pulido-Alatorre's motion to
reopen. Accordingly, the BIA is entitled to deference; the petition for review is
DENIED.
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