Case: 14-60539 Document: 00513492417 Page: 1 Date Filed: 05/04/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-60539 United States Court of Appeals
Fifth Circuit
FILED
JESUS CARDOSO MERCADO, May 4, 2016
Lyle W. Cayce
Petitioner, Clerk
v.
LORETTA LYNCH, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Before HIGGINBOTHAM, PRADO, and GRAVES, Circuit Judges.
PER CURIAM:
Petitioner Jesus Cardoso Mercado was ordered removed from the United
States pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii) after the Board of Immigration
Appeals (“BIA”) found that his convictions for indecent exposure and making
terroristic threats under Texas law are crimes involving moral turpitude
(“CIMT”). Because we hold that the BIA applied the incorrect standard in
analyzing whether Petitioner’s convictions constitute CIMTs, we reverse and
remand.
I. FACTUAL BACKGROUND
Petitioner is a Mexican native and citizen who was admitted to the
United States as a permanent resident in 1983 and then again as a returning
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No. 14-60539
permanent resident in 2007. In August 2007, Petitioner pleaded nolo
contendere to indecent exposure in violation of Texas Penal Code § 21.08. In
May 2010, he pleaded nolo contendere to making terroristic threats in violation
of Texas Penal Code § 22.07.
In 2013, the Department of Homeland Security (“DHS”) notified
Petitioner that he was subject to removal from the United States pursuant to
8 U.S.C. § 1227(a)(2)(A)(i) and (ii). 1 An Immigration Judge found that
Petitioner was removable pursuant to § 1227(a)(2)(A)(ii), which states that an
alien may be deported at any time after admission if “convicted of two or more
crimes involving moral turpitude, not arising out of a single scheme of criminal
misconduct.” In March 2014, the Immigration Judge denied Petitioner’s
request for discretionary cancellation of his removal and ordered that he be
removed to Mexico.
The BIA affirmed the Immigration Judge, holding that under the
“realistic probability” approach Petitioner’s convictions for indecent exposure
and making terroristic threats under Texas law are CIMTs.
II. DISCUSSION
We review questions of law raised in the Petition for Review de novo but
give “considerable deference to the BIA’s interpretation of the legislative
scheme it is entrusted to administer.” Zhu v. Gonzales, 493 F.3d 588, 594 (5th
Cir. 2007) (quoting Fonseca-Leite v. I.N.S., 961 F.2d 60, 62 (5th Cir. 1992)).
That is, “[w]e give Chevron deference to the BIA’s interpretation of the term
‘moral turpitude’ and its guidance on the general categories of offenses which
constitute CIMTs, but we review de novo the BIA’s determination of whether
1 DHS subsequently withdrew the charge under § 1227(a)(2)(A)(i).
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a particular state or federal crime qualifies as a CIMT.” Esparza-Rodriguez v.
Holder, 699 F.3d 821, 823−24 (5th Cir. 2012).
The BIA applied the realistic probability approach in analyzing whether
Petitioner’s convictions are CIMTs. Under this approach, “[i]n determining
whether a state statute sweeps more broadly than an offense defined under
federal law, courts should not ‘conceive of every imaginable means by which a
statute might possibly be violated.’” United States v. Rodriguez-Negrete, 772
F.3d 221, 225 (5th Cir. 2014), cert. denied, 135 S. Ct. 1538 (2015) (quoting
United States v. Gore, 636 F.3d 728, 733 (5th Cir. 2011)). Instead, courts must
determine whether there is “a realistic probability, not a theoretical possibility,
that the State would apply its statute to conduct that falls outside the generic
definition of a crime.” Id. (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183,
193 (2007)). This requires a “show[ing] that the statute was so applied in [the
petitioner’s] own case” or “at least point[ing] to . . . other cases in which the
state courts in fact did apply the statute in the special (nongeneric) manner for
which he argues.” Duenas-Alvarez, 549 U.S. at 193. The BIA concluded that
both of Petitioner’s convictions included the requisite reprehensible conduct
and mental state to be CIMTs, and Petitioner had failed to show a realistic
probability that individuals would be prosecuted under these sections for non-
reprehensible conduct.
While the BIA 2 and several other circuits 3 have adopted this approach
in the context of analyzing whether convictions constitute CIMTs under the
2 See Matter of Hernandez, 26 I. & N. Dec. 397, 398 (BIA 2014); Matter of Medina, 26
I. & N. Dec. 79, 82 (BIA 2013); Matter of Louissaint, 24 I. & N. Dec. 754, 757 (BIA 2009).
3 See, e.g., Cano-Oyarzabal v. Holder, 774 F.3d 914, 916−17 (7th Cir. 2014); Villatoro
v. Holder, 760 F.3d 872, 877 (8th Cir. 2014); Gonzalez-Cervantes v. Holder, 709 F.3d 1265,
1266 (9th Cir. 2013); Rodriguez-Heredia v. Holder, 639 F.3d 1264, 1267 (10th Cir. 2011). But
see Jean-Louis v. Att’y Gen., 582 F.3d 462, 481−82 (3d Cir. 2009) (declining to adopt the
realistic probability approach in analyzing CIMTs).
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Immigration and Nationality Act (“INA”), this Court has not. See Cisneros-
Guerrerro v. Holder, 774 F.3d 1056, 1058–59, 1059 n.2 (5th Cir. 2014); Nino v.
Holder, 690 F.3d 691, 694 (5th Cir. 2012). Rather, we have persistently applied
the “minimum reading” approach in this context. E.g., Amouzadeh v. Winfrey,
467 F.3d 451, 455 (5th Cir. 2006); Cisneros-Guerrerro, 774 F.3d at 1058–59;
Nino, 690 F.3d at 694. Pursuant to this approach, “[a]n offense is a crime
involving moral turpitude if the minimum reading of the statute [of conviction]
necessarily reaches only offenses involving moral turpitude.” Nino, 690 F.3d at
694 (second alternation in original) (quoting Amouzadeh, 467 F.3d at 455).
The Government argues that this Court should now adopt the realistic
probability approach in the CIMT context. However, we are bound by this
Circuit’s rule of orderliness. Under our rule of orderliness, “one panel of our
court may not overturn another panel’s decision, absent an intervening change
in the law, such as by a statutory amendment, or the Supreme Court, or our
en banc court.” Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th
Cir. 2008).
The Government contends that the Supreme Court’s decision in
Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), constitutes such an intervening
change in law. We disagree. For a Supreme Court decision to satisfy this
Court’s rule of orderliness, it must “be unequivocal, not a mere ‘hint’ of how the
Court might rule in the future.” United States v. Alcantar, 733 F.3d 143, 146
(5th Cir. 2013). Moncrieffe addressed whether a conviction was an aggravated
felony, not a CIMT. See 133 S. Ct. at 1682. And while it stated that courts view
the “minimum conduct criminalized by the state statute,” id. at 1684, in light
of the “realistic probability . . . that the State would apply its statute to conduct
that falls outside of the generic definition of the crime,” id. at 1685 (quoting
Duenas-Alvarez, 549 U.S. at 193), this is not an unequivocal indication that
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the Supreme Court intended to extend the realistic probability approach to the
CIMT context.
We also find the Government’s argument that Moncrieffe unequivocally
supports extending the realistic probability approach to analyzing CIMTs
because it cited two cases involving CIMTs unavailing. The Court cited
Guarino v. Uhl, 107 F.2d 399 (2d Cir. 1939), and United States ex rel. Mylius
v. Uhl, 210 F. 860 (2d Cir. 1914), for the proposition that courts look to the
conviction offense, not the actual facts, in determining whether the conviction
meets a generic crime definition. Moncrieffe, 133 S. Ct. at 1684 (quoting
Guarino, 107 F.2d at 399); id. at 1685 (citing Mylius, 210 F. at 862). The
Supreme Court neither acknowledged that these cases involved CIMTs nor
relied on this aspect. See id. at 1864–65.
As such, there has not been an intervening change of law that would
permit this panel to overturn prior precedent and adopt the realistic
probability approach as applied to CIMTs.
III. CONCLUSION
Accordingly, we reverse and remand for the BIA to analyze Petitioner’s
convictions under the minimum reading approach.
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