Case: 14-60449 Document: 00514067956 Page: 1 Date Filed: 07/11/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 14-60449
Fifth Circuit
FILED
Summary Calendar July 11, 2017
Lyle W. Cayce
JUAN MANUEL CERDA, Clerk
Petitioner
v.
JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A087 938 522
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
Juan Manuel Cerda, a native and citizen of Mexico, petitions for review
of a decision of the Board of Immigration Appeals (BIA), which upheld an order
of an Immigration Judge (IJ) denying his application for cancellation of
removal and ordering him removed from the United States. The IJ found that
Cerda was deportable and that he was not eligible for cancellation of removal
because his prior assault conviction under Texas Penal Code § 22.01(a)(1) was
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 14-60449 Document: 00514067956 Page: 2 Date Filed: 07/11/2017
No. 14-60449
for a crime involving moral turpitude that made him inadmissible under
8 U.S.C. § 1182(a)(2)(A)(i)(I). Because § 22.01(a)(1) proscribes some forms of
assault that are not morally turpitudinous, the denial of Cerda’s cancellation
of removal application rested on the modified categorical approach, which the
IJ and BIA used to narrow his prior conviction by reference to state court
documents in accordance with Esparza-Rodriguez v. Holder, 699 F.3d 821, 824-
26 (5th Cir. 2012).
In Gomez-Perez v. Lynch, 829 F.3d 323, 328 n.5 (5th Cir. 2016), we
recently held that to the extent Esparza-Rodriguez treated § 22.01(a)(1) as
divisible and thus amenable to the modified categorical analysis, it has been
overruled by Mathis v. United States, 136 S. Ct. 2243 (2016). The parties now
agree that remand is warranted. Accordingly, we GRANT the petition for
review, VACATE the decision of the BIA, and REMAND the case for further
consideration of whether Cerda meets the other requirements to be considered
for cancellation of removal, and if so, whether he is entitled to that relief as an
exercise of the immigration court’s discretion.
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