United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit October 3, 2005
Charles R. Fulbruge III
No. 04-60003 Clerk
SEFERINA RODRIGUEZ-CASTRO
Petitioner
v.
ALBERTO R. GONZALES, UNITED STATES ATTORNEY GENERAL
Respondent
Petition For Review of an Order
of the Board of Immigration Appeals
Before DAVIS, STEWART, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
The question presented is whether attempted misdemeanor
child abandonment, with intent to return to the child, under
section 22.041(b) of the Texas Penal Code is a crime involving
moral turpitude (CIMT) under 8 U.S.C. § 1182(a)(2)(A)(i)(I). We
conclude that it is not. As interpreted by the Texas courts, that
crime is not an “abandonment” in the ordinary sense of the word,
but is, in essence, leaving a child under the age of 15 years
temporarily without adult supervision under circumstances that a
reasonable person would perceive expose the child to an
1
unreasonable risk of harm. Applying the BIA’s definition of a
CIMT to that category of crime as defined by Texas law, we
conclude that the offense does not amount to a CIMT. We therefore
grant Ms. Rodriguez-Castro’s petition for review, vacate the
decision of the BIA, and remand the case to the BIA for further
proceedings.
BACKGROUND AND PROCEDURAL HISTORY
Ms. Rodriguez-Castro is a native and citizen of Mexico who
entered the United States some time between 1986 and 1990 without
inspection or parole. On September 9, 1999, she was indicted in
Texas state court for child abandonment with intent to return in
violation of Texas Penal Code section 22.041, subsections (b) and
(c). She ultimately pleaded guilty to the lesser included charge
of attempted misdemeanor child abandonment with intent to return,
in violation of Texas Penal Code section 22.041(b). On July 25,
2001, the state court accepted her guilty plea. Ms. Rodriguez-
Castro was sentenced to pay a fine and serve 364 days in jail,
with imprisonment suspended subject to probation and community
service.
On September 24, 1999, the INS charged Ms. Rodriguez-Castro
under 8 U.S.C. § 1182(a)(6)(A)(1), i.e., as an inadmissable alien
ineligible for admission because she was present in the U.S.
“without being properly admitted or paroled” or because she
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arrived in the United States at “[a] time or place other than as
designated by the Attorney General as admissible.” Under 8 U.S.C.
§ 1227(a)(1)(A), such inadmissible aliens are deportable. Ms.
Rodriguez-Castro conceded her removability and sought relief by
filing an application for cancellation of removal.
Under 8 U.S.C. § 1229b(b)(1), a nonpermanent alien may be
granted cancellation by the Attorney General if: 1) she has been
present continuously in the U.S. for at least 10 years; 2) she
has been “a person of good moral character during [that]
period[,]” 8 U.S.C. § 1229b(b)(1)(B); 3) she has not been
convicted of certain categories of crimes - including crimes
meeting the requirements of 8 U.S.C. § 1227(a)(2), crimes of
moral turpitude; and 4) removal “would result in exceptional and
extremely unusual hardship to the alien's... child, who is a
citizen of the U.S.” 8 U.S.C. § 1229b(b)(1)(D).
The immigration judge found Ms. Rodriguez-Castro’s
conviction for attempted misdemeanor child abandonment qualified
as a CIMT. Thus, Ms. Rodriguez-Castro was not eligible for
cancellation of removal: "[r]espondant is barred as an alien
convicted of an offense under 8 U.S.C. § 1227(a)(2) [CIMTs] and
is unable [because of that conviction] to show good moral
character." Immigration Judge’s Opinion at 6. As a result, a
final order was entered, sustaining the charge under 8 U.S.C. §
1182, denying the application for cancellation of removal on the
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basis of statutory ineligibility, and ordering Ms.
Rodriguez-Castro removed from the U.S. Immigration Judge’s
Opinion at 7. On December 13, 2003 the BIA affirmed the
Immigration Judge’s decision without opinion. Ms. Rodriguez-
Castro timely filed a petition for review of the BIA’s decision.
JURISDICTION
On May 11, 2005, the President signed the REAL ID Act of
2005, Pub. L. No. 109-13, 119 Stat. 231, broadening the court's
jurisdiction by adding a section to 8 U.S.C. § 1252.1 The
addition reads:
Judicial Review of Certain Legal Claims: Nothing in
subparagraph (B) or (C), or in any other provision of
this Act (other than this section) which limits or
eliminates judicial review, shall be construed as
precluding review of constitutional claims or questions
of law raised upon a petition for review filed with an
appropriate court of appeals in accordance with this
section. 8 U.S.C. § 1252(a)(2)(D).
Section 106(b) of the REAL ID Act makes the above section
1
Before May 2005, the final order in Ms. Rodriguez-Castro’s
case denying her application for cancellation and ordering her
removal would not be subject to review: "no court shall have
jurisdiction to review any final order of removal against an alien
who is removable by reason of having committed a criminal offense
[under certain provisions of the INA, including 8 U.S.C. §
1227(a)(2), which includes CIMTs]." 8 U.S.C. § 1252(a)(2)(C)
(2004). Even then, however, courts retained the ability to review
the underlying jurisdictional facts at issue - for example, whether
a particular state statute created a crime properly classified as
a CIMT. In Ms. Rodriguez-Castro’s case, if her crime was properly
classified as a CIMT, a court would have to dismiss her petition
for lack of jurisdiction; if it was not properly classified, the
court could exercise jurisdiction and vacate the order of removal.
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applicable retroactively. Pub. L. No. 109-13, 119 Stat. 231.
The REAL ID Act thus removes jurisdictional bars to direct
review of questions of law in final removal, deportation, and
exclusion orders. See Papageorgiou v. Gonzalez, 413 F.3d 356, 358
(3d Cir. 2005); accord Fernando-Ruiz v. Gonzalez, 410 F.3d 585,
587 (9th Cir. 2005); Gattem v. Gonzalez, 412 F.3d 758, 762 (7th
Cir. 2005); Lopez v. Gonzales, No. 04-2397, 2005 WL 1869044 at *1
(8th Cir. Aug. 9, 2005). In Ms. Rodriguez-Castro's case, the
question is entirely a question of law - whether the BIA properly
classified the Texas statute as a CIMT. Because a question of law
is at issue and because the statute explicitly applies
retroactively, we have jurisdiction over Ms. Rodriguez-Castro's
case.
STANDARD OF REVIEW
The INA “'does not define the term "moral turpitude" and
legislative history does not reveal congressional intent'
regarding which crimes are turpitudinous." Smalley v. Ashcroft,
354 F.3d 332, 335 (5th Cir. 2003) (quoting Pichardo v. I.N.S.,
104 F.3d 756, 759 (5th Cir. 1997)). Instead, Congress left the
interpretation of this provision to the BIA and interpretation of
its application to state and federal laws to the federal courts.
Okoro v. I.N.S., 125 F.3d 920, 926 (5th Cir. 1997).
The immigration regulations provide that a CIMT is an
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offense that is both 1) a crime in the jurisdiction of
occurrence, and 2) a crime of turpitude per the “moral standards
generally prevailing in the United States.” 22 C.F.R. § 40.21
(2005). We have concluded that the BIA, through its
administrative decisions, has interpreted and defined “crime
involving 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.
Hamdan v. I.N.S., 98 F.3d 183, 186 (5th Cir. 1996)(quoting the
BIA's decision in that case) (internal citations omitted); see
also Omagah v. Ashcroft, 288 F.3d 254, 259-60 (5th Cir. 2002)
(quoting Hamdan language with approval). Consequently, we give
Chevron deference to the BIA’s interpretation of the INA when
appropriate, but we review de novo the BIA’s interpretation and
evaluation of state law in deciding whether a particular state
law is a CIMT. See Omagah, 288 F.3d at 258 (5th Cir. 2002);
accord, Okoro v. I.N.S., 125 F.3d 920, 926 (5th Cir. 1997);
Knapik v. Ashcroft, 384 F.3d 84, 88 (3d Cir. 2004) (“in
determining what the elements are of a particular criminal
statute deemed to implicate moral turpitude, we do not defer to
6
the BIA.”); Michel v. I.N.S., 206 F.3d 253, 262 (2d Cir. 2000)
(stating that when "the BIA is interpreting state or federal
criminal laws, we must review its decision de novo") (citing
Hamdan, 98 F.3d 183, 185 (5th Cir. 1996)).
In our de novo interpretation and evaluation of a state
law, we look to the statutory crime definition as interpreted by
the state’s courts, without regard to the particular
circumstances surrounding the specific offender’s violation.
Okabe v. I.N.S., 671 F.2d 863, 865 (5th Cir. 1982)(“Whether a
crime involves moral turpitude depends upon the inherent nature
of the crime, as defined in the statute concerned, rather than
the circumstances surrounding the particular transgression.”);
accord, Padilla v. Gonzalez, 397 F.3d 1016, 1019 (7th Cir. 2005);
DeLeon-Reynoso v. Ashcroft, 293 F.3d 633, 635 (3d Cir. 2002);
Nguyen v. Reno, 211 F.3d 692, 695 (1st Cir. 2000)). When applying
the categorical approach, “the statute must be read at the
minimum criminal conduct necessary to sustain a conviction under
the statute.” Hamdan, 98 F.3d at 189 (citing U.S. ex rel. Guarino
v. Uhl, 107 F.2d 399, 400 (2d Cir. 1939)); accord, Partyka v.
Attorney General of the U.S., No. 04-2804, 2005 WL 1906903 at *3
(3d Cir. Aug. 11, 2005); Matter of Marchena, 12 I. & N. Dec. 355,
357 (BIA 1967). Generally, a statute that encompasses both acts
that do and do not involve moral turpitude cannot be the basis of
removal determination under the categorical approach. Hamdan, 98
7
F.3d at 187 (citing Matter of Short, 20 I. & N. Dec. 136, 138
(BIA 1989)); accord, Smalley v. Ashcroft, 354 F.3d 332, 336 (5th
Cir. 2003); Omagah v. Ashcroft, 288 F.3d 254, 260 (5th Cir.
2002); Pichardo v. I.N.S., 104 F.3d 756, n.6 (5th Cir. 1997);
Michel v. I.N.S., 206 F.3d 253, 263 (2d Cir. 2000); Partyka v.
Attorney General of the U.S., No. 04-2804, 2005 WL 1906903 at *3
(3d Cir. Aug. 11, 2005); .
DISCUSSION
Section 22.041 of the Texas Penal Code provides:
(a) In this section, "abandon" means to leave a child
in any place without providing reasonable and
necessary care for the child, under circumstances
under which no reasonable, similarly situated adult
would leave a child of that age and ability.
(b) A person commits an offense if, having custody,
care, or control of a child younger than 15 years, he
intentionally abandons the child in any place under
circumstances that expose the child to an unreasonable
risk of harm.
(c) A person commits an offense if he intentionally,
knowingly, recklessly, or with criminal negligence, by
act or omission, engages in conduct that places a
child younger than 15 years in imminent danger of
death, bodily injury, or physical or mental
impairment.
(d) Except as provided by Subsection (e), an offense
under Subsection (b) is:
(1) a state jail felony if the actor
abandoned the child with intent to return
for the child; or
(2) a felony of the third degree if the
actor abandoned the child without intent to
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return for the child.
(e) An offense under Subsection (b) is a felony of the
second degree if the actor abandons the child under
circumstances that a reasonable person would believe
would place the child in imminent danger of death,
bodily injury, or physical or mental impairment.
(f) An offense under Subsection (c) is a state jail
felony.
(g) It is a defense to prosecution under Subsection
(c) that the act or omission enables the child to
practice for or participate in an organized athletic
event and that appropriate safety equipment and
procedures are employed in the event.
(h) it is an exception to the application of this
section that the actor voluntarily delivered the child
to a designated emergency infant care provider under
Section 262.302, Family Code.
The offense of attempted abandonment of a child with the intent
to return is a misdemeanor. TEX. PENAL CODE § 15.01 (Vernon 2005).
The statute defines “abandon” in negligence language while
punishing an offender who “intentionally abandons” a child. The
Texas courts have solved this legislative enigma by reading
“intentionally” to refer only to the offender’s act of leaving
the child unattended by another caretaker. Thus, conviction does
not require proof that the offender knew that his act of
abandonment exposed the child to unreasonable risk of harm, but
requires only that the circumstances in which the child was left
would have been recognized by a reasonable similarly situated
adult to present an unreasonable risk of harm to the child.
Consequently, proof of the basic crime of child abandonment
9
requires the state to establish that the offender knew he was
leaving the child in a place without a reasonably adequate
caretaker and that, regardless of the offender’s actual
knowledge, the circumstances under which the child was left
exposed the child to an unreasonable risk of harm. See Schultz
v. State, 923 S.W.2d 1, 1-2 (Tex. Cr. App. 1996) (“the culpable
mental state under Sec. 22.041(b) is 'intentional' and [] the
mental state attaches to conduct rather than to circumstances
surrounding conduct."); see also Herbst v. State, 941 S.W.2d
371, 373 (Tex.App.-Beaumont Mar 12, 1997)(a court must “look at
the circumstances...through the eyes of a 'reasonable, similarly
situated adult' and through the eyes of a 'reasonable
person'.”); J. LEE BALDWIN, et al., l19 TEX.JUR.3D CRIMINAL LAW § 472
, n.76 (2005)("A conviction of the offense of abandonment of a
child does not require proof that the defendant was reckless
with regard to the circumstances surrounding the abandonment,
but rather, only proof that the defendant intentionally
abandoned the child. Thus abandoning a child may be a criminal
offense, even if the person leaving the child is unaware of the
risk in doing so."). In contrast, the offense of leaving a child
in a vehicle, TEX. PENAL CODE section 22.10 (Vernon 2005),
“explicitly requires” knowing or intentional leaving as well as
knowledge of the circumstances - that the child is “under seven
years old not attended by a person 14 years or older.” BALDWIN,
10
supra, § 474 .
Under § 22.041, the level of culpability and punishment for
child abandonment by a custodian varies depending on whether the
offender intended to return to the child and on the degree of
risk to which the child is exposed. See TEX. PENAL CODE §
22.041(d)(1), (d)(2). The offense constitutes only a jail felony
if the offender left the child with the intent to return for the
child. Id. § 22.041(d)(1). An attempt to commit that jail felony
is punishable only as a misdemeanor. Id. § 15.01. On the other
hand, a violation of the statute by a custodian without an
intent to return for the child is a third degree felony. Id. §
22.041(d)(2). A violation under circumstances that a reasonable
person would believe expose the child to imminent danger of
death, bodily injury, or physical or mental impairment is a
second degree felony. Id. § 22.041(e).
Before the enactment of section 22.041 in 1985, when a
child was abandoned by a person with custody of the child, that
person could be prosecuted only if the child suffered injury or
death. Schultz v. State, 923 S.W.2d 1, n.4( Tex. Crim. App.
1996). Apparently, in an attempt to curb an increasing incidence
of appalling parental desertions, such as infants left in fields
and trash dumpsters, young children left unattended several
weeks in filthy apartments, and three year olds left in a house
alone with open flame heaters for half the night in winter, the
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scope of the crime of child abandonment was greatly expanded.
Id.(discussing legislative history). Section 22.041 was enacted
to criminalize virtually any act of leaving a child unattended
in a dangerous situation, regardless of whether the child was
harmed, and without the necessity of proving the offender’s
intent, recklessness, or even awareness of the child’s jeopardy.
Consequently, this broad approach to the problem brings within
the ambit of culpability and punishment not only the despicable
and malevolent but also the foolish and negligent.
Ms. Rodriguez’s crime of conviction ranks within the lowest
grade of the offense, as an attempted non-harmful temporary
leaving with the intent to return. TEX. PENAL CODE §§ 15.01,
22.041(b),(d)(1). At the minimum level of culpability within
this category, the offense may be viewed as an act involving
only negligence in temporarily leaving a child, with the intent
to return, in a situation of unreasonable risk, but without harm
to the child. Thus, the crime at issue in the present case
must be presumed to be one of the least in culpability within
that range, such as, for example, a mother’s quick trip next
door to borrow some sugar while carelessly leaving a toddler
alone in a kitchen with a pot boiling, electric sockets
uncovered, and ordinary utensils accessible.
To shed light on whether the crime at issue is a CIMT, we
turn to the BIA’s general definition, and also to other indicia
12
of moral turpitude that have been inferred from the BIA’s
numerous decisions. Although none of these amounts to an
indisputable hallmark or conclusive identification of a CIMT,
the absence of any contrary indication by them in the present
case further convinces us that the crime here is not a CIMT.
As a general rule, laws that authorize criminal punishment
without proof that the offender intended or recklessly
disregarded the potential consequences of his act do not define
CIMTs. See generally Michel v. I.N.S. 206 F.3d 253, 265 (2d Cir.
2000)(“[M]oral turpitude...is a question of the offender’s evil
intent or corruption of the mind.”)(quoting In re Serna, 20 I.&
N. Dec. 579, 581-582(BIA 1989)); Id. at 263 (“[Corrupt scienter
is the touchstone of moral turpitude.”). Thus, negligence-based
crimes usually do not amount to CIMTS. See, e.g., Partyka v.
Attorney General of the U.S., No. 04-2804, 2005 WL 1906903 at *4
(3d Cir. Aug. 11, 2005) (“The negligent infliction of bodily
injury lacks this essential culpability requirement [of
consciousness or deliberateness]. By definition, a negligent
assault is unintentional, unwitting, and committed without
contemplation of the risk of injury involved.”); In re Perez-
Contreras, 20 I. & N. Dec. 615 (BIA 1992) (stating, with regard
to a Washington state statute for third degree assault, that
“[s]ince there was no intent [to cause a particular harm], not
any conscious disregard of a substantial and unjustifiable risk,
13
we find no moral turpitude inherent in the statute.”).
Similarly, strict liability crimes generally are not CIMTs. Mei
v. Ashcroft, 393 F.3d 737, 740 (7th Cir. 2004)(“[C]rimes deemed
not to involve moral turpitude...are either very minor crimes
that are deliberate or graver crimes committed without a bad
intent, most clearly strict-liability crimes.”)(citing
(Rodriguez-Herrera v. I.N.S., 52 F.3d 238, 241; Goldeshtein v.
I.N.S., infra; State v. Miller, infra); Goldeshtein v. I.N.S., 8
F.3d 645, 648 (9th Cir. 1993) (holding that financial
structuring crimes which contain “no element of scienter” are
not CIMTs); State v. Miller, 836 P.2d 1004, 1005 (Ariz. App.
1992) (stating that the crimes of conducting business and
advertising without a license “do not require any culpable
mental state” and therefore are not CIMTS.); In re L-V-C, 22 I.
& N. Dec. 594, 602 (BIA 1999)(following Goldeshtein). Cf.,
Smalley v. Ashcroft, 354 F.3d 332, 338-9 (5th Cir. 2003)
(Distinguishing structuring crime in Goldeshtein, since it
“requires no intent to defraud the government,” from money-
laundering, which is a CIMT because it involved intent to
defraud and conceal illegal drug proceeds).
In the same vein, BIA decisions in which failure to support
a child has been found to be a CIMT involve willful and
intentional acts that leave a child in destitute circumstances.
See, e.g., In the Matter of R., 4 I. & N. Dec. 192, 194 (BIA
14
1950)(holding violation of a Wisconsin statute was a CIMT
because it required both wilfulness and destitution of the
child); In the Matter of S., 2 I. & N. Dec. 553 (BIA 1946)
(finding same with regard to New York statute); In the Matter of
R., 4 I. & N. Dec. at 194 (observing that most CIMT failure to
support statutes require willfulness and destitution). In the
CIMT failure-to-support cases, the defendant was culpable of
more than mere negligence. Rather, the classifications of these
crimes as CIMTS were based essentially on the defendant’s
willfulness and the resulting destitution of the child. Further,
the BIA declined to classify a failure to support violation as a
CIMT where the statute imposed criminal liability despite the
defendant’s “good faith and honest motives.” In the Matter of E,
2 I. & N. Dec. 134, 135 (BIA 1944)) (holding that an Ohio
nonsupport statute was not a CIMT because a parent could violate
it even where he honestly believed he was acting in the child’s
best interests).
Evaluating the category of conduct criminalized by section
22.041(b), measured by the least culpable conduct required for
its commission, in light of the BIA’s general definition of a
CIMT, as well as the BIA and court decisions involving
negligence and strict-liability crimes, we conclude that the
offense at issue here is not a CIMT. The state crime in this
case does not qualify as a CIMT because it does not shock the
15
public conscience as being inherently base, vile, or depraved;
it is not per se morally reprehensible and intrinsically wrong,
or malum in se; and it is not accompanied a vicious motive or a
corrupt mind.
CONCLUSION
For these reasons, we GRANT Ms. Rodriguez-Castro’s petition
for review, VACATE the decision of the BIA and REMAND the case to
the BIA for further proceedings not inconsistent with this
opinion.
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