United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS F I L E D
June 18, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_____________________ Clerk
No. 06-60456
____________________
CARLOS A. FUENTES-CRUZ,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney General of the United States,
Respondent.
__________________
ON PETITION FOR REVIEW FROM A FINAL ORDER OF
THE BOARD OF IMMIGRATION APPEALS
__________________
Before HIGGINBOTHAM, DAVIS and WIENER, Circuit Judges.
PER CURIAM:
Carlos A. Fuentes-Cruz (“Fuentes-Cruz”) seeks review of an
order by the Board of Immigration Appeals (“BIA”) denying his
cancellation of removal application. We agree with the
Immigration Judge (“IJ”) and the BIA that Fuentes-Cruz’s
conviction of the Texas offense of Unlawful Transport under TEX.
PENAL CODE ANN. § 20.05 is a crime involving moral turpitude. We
therefore dismiss Fuentes-Cruz’s petition for review.
I. Facts and Procedure
Fuentes-Cruz, a native and citizen of El Salvador, has
resided in the United States since January 1990 when he entered
without inspection. He is married and has three children, all of
whom are U.S. citizens.
In April 2004 Fuentes-Cruz was arrested for unlawful
transport of individuals under § 20.05, and in August 2004 he
pleaded guilty to the charge. Thereafter, the U.S. Immigration &
Customs Enforcement (“ICE”) agency initiated removal proceedings
against Fuentes-Cruz. At his removal hearing, he conceded that
he is removable for not having been admitted or paroled in the
U.S., but requested cancellation of removal under the Nicaraguan
Adjustment and Central American Relief Act (“NACARA”). The IJ
found that Fuentes-Cruz was eligible for consideration of the
special-rule cancellation of removal, but denied cancellation as
a matter of law because unlawful transport was a crime involving
moral turpitude. The BIA affirmed the ruling of the IJ.
Fuentes-Cruz argues that unlawful transport is not a crime
involving moral turpitude because it lacks the requisite mental
state requirement.
II. Standard of Review
This Court has applied a two-part standard of review to the
BIA’s conclusion that an alien has committed a crime involving
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moral turpitude. First, we accord substantial deference to the
BIA’s definition of the term “moral turpitude.” Second, we
review de novo whether the elements of the offense fit the BIA’s
definition of a crime involving moral turpitude. Importantly,
this two-step approach provides both consistency concerning the
meaning of moral turpitude and a proper regard for the BIA’s
administrative role-interpretation of federal immigration laws,
not state and federal criminal statutes. Smalley v. Ashcroft,
354 F.3d 332, 335-336 (5th Cir. 2003). If this court finds the
crime the alien was convicted of is a crime involving moral
turpitude, the court does not have jurisdiction to review the BIA
removal order under 8 U.S.C. § 1252(a)(2)(c).
III. Discussion
Under the Immigration and Naturalization Act (“INA”), “[a]ny
alien who is convicted of a crime involving moral turpitude” is
deportable. 8 U.S.C. § 1227(a)(2)(A)(i)(I). The INA does not
define a crime involving moral turpitude, but leaves
interpretation to the BIA and federal courts. Smalley, 354 F.3d
at 335. The BIA in Hamdan v. INS, 98 F.3d 183, 186 (5th Cir.
1996) 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 appreciated rules of morality
and the duties owed between persons or to society in
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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. (internal citations
omitted)
The Petitioner asserts that absent a mental state such as
evil intent, fraudulent intent, vicious motive, or corrupt mind,
an offense cannot be classified as a crime involving moral
turpitude. Assuming, arguendo, that such a requirement exists,
we find this requirement is met in § 20.05 of the Texas Penal
Code. Sec. 20.05 states that a person commits an unlawful
transport if for pecuniary benefit he transports an individual in
a manner that:
(1) is designed to conceal the individual from local, state,
or federal law enforcement authorities; and
(2) creates a substantial likelihood that the individual
will suffer serious bodily injury or death. (emphasis added)
To convict a defendant of this offense requires proof that
he designed a method to transport individuals so as to conceal
them from law enforcement authorities. Such proof necessarily
requires evidence of a fraudulent intent. By pleading guilty to
the charge of unlawful transport, Petitioner admitted that he
knowingly, or intentionally, designed the manner he transported
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the individuals to conceal them from law enforcement authorities,
thereby intending to deceive such authorities.
This Court has repeatedly held that crimes including an
element of intentional deception are crimes involving moral
turpitude. See Omagah v. Ashcroft, 288 F.3d 254, 260 (5th Cir.
2002) (conspiracy to obtain, possess and use illegal immigration
documents is a crime involving moral turpitude); Pichardo v. INS,
104 F.3d 756, 760 (5th Cir. 1997) (aggravated assault is a crime
involving moral turpitude); Okabe v. INS, 671 F.2d 863, 865 (5th
Cir. 1982) (bribery is a crime involving moral turpitude). The
BIA has similarly stated that “[w]here knowing or intentional
conduct is an element of a morally reprehensible offense, we have
found moral turpitude to be present.” In re Phong Nguyen Tran, 21
I. & N. Dec. 291, 293 (BIA 1996).
In employing the “categorical approach,” when determining if
a particular law meets the definition of moral turpitude, we
focus “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. As §
20.05 requires proof of intent to conceal from law enforcement
authorities, the offense of unlawful transport is a crime
involving moral turpitude. Because the BIA correctly concluded
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that Petitioner was convicted of a crime involving moral
turpitude, we do not have jurisdiction to review its removal
order. 8 U.S.C. § 1252(a)(2)(c).
The Petition for Review is DISMISSED.
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